Advance Rumley Co. v. Freestone

• Decision Date: 02 July 1929
• Docket Number: No. 13277.,13277.
• Citation: 89 Ind.App. 653,167 N.E. 377
• Parties: ADVANCE RUMLEY CO. v. FREESTONE et al.
• Court: Indiana Appellate Court

89 Ind.App. 653

167 N.E. 377

ADVANCE RUMLEY CO.

v.FREESTONE et al.

No. 13277.^*

Appellate Court of Indiana, in Banc.

July 2, 1929.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Amos Freestone and another, by H. W. Worden, guardian, opposed by the Advance Rumley Company. From the judgment awarding compensation the employer appeals. Reversed in part, and in part affirmed.

John E. Winn and Hickey, Wolfe & Dilworth, all of La Porte, for appellant.

H. W. Worden, of La Porte, for appellees.

McMAHAN, C. J.

Alonzo Freestone died October 3, 1927, as the result of an accident which arose out of and in the course of his employment by appellant. He left surviving him two sons, Amos, born in December, 1914, and Ernest, born in June, 1916. These sons, by their guardian, filed an application for compensation. Amos was awarded 300 weeks' compensation at the rate of $12.07 per week, and Ernest was awarded compensation for the same period at the rate of 61 cents per week. The employer appeals. In December, 1916, Mary Freestone, the mother of these boys, was divorced from Alonzo Freestone by the La Porte circuit court, and was awarded the custody, education, and maintenance of Ernest. The father was ordered to pay $5 per month for his support. The father was given the care and custody of Amos until further order of the court. Mrs. Freestone married again, and at the time of Alonzo Freestone's death she and Ernest lived with her second husband on a farm in Michigan. Amos lived with his father until June 23, 1927, when the La Porte circuit court committed him to White's Manual Labor Institute at Wabash as a delinquent. Amos was thereafter under the care and custody of that institution until after the father's death. La Porte county was charged with and paid for the care and support of Amos after he was sent to said institution. After the death of the father, the probation officer of La Porte county, with the consent of the judge, gave a letter to an uncle of Amos, for his release in order that he might attend the funeral. The uncle, acting on this letter, got the boy at the time of the funeral, and on December 1, 1927, he was with the uncle. The order of the court committing Amos to the institution as a delinquent has never been revoked or modified, but is still in force.

Appellant contends that neither of the boys is entitled to compensation. Section 38 of the Workmen's Compensation Act, as amended in 1919, Acts 1919, p. 165, c. 57; section 9483, Burns' Ann. St. 1926, provides that: “The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: *** (c) A child under the age of eighteen years upon the parent with whom he or she is living at the time of the death of such parent. (d) A child under eighteen years upon a parent with whom he or she may not be living at the time of the death of such parent, but upon whom, at such time, the laws of the state impose the obligation to support such child. *** In all other cases, the question of total dependency shall be determined in accordance with the fact as the fact may be at the time of the death, and the question of partial dependency shall be determined in like manner as of the date of the injury. If there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partially dependent shall receive [no] part thereof. If there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among the partial dependents according to the relative extent of their dependency.”

The Industrial Board did not find as a fact that either of the boys was or was not living with the father at the time of his death. It found that the custody, education, and maintenanceof Ernest was by the decree of divorce given to the mother, and that the father should pay her $5 a month for his support, that the father was given the care and custody of Amos, that the decree had never been changed, and that the boys were the only dependents of the father at the time of his death. Neither the finding nor the award mentions any fact relating to the commitment of Amos to the care and custody of an institution, where, at the time of the father's death, he was being supported by the county. The undisputed evidence shows that Ernest had been living with his mother after the divorce, and that Amos lived with his father until he was committed to the institution where he remained until after his father's death.

The board awarded each child compensation, one at the rate of 61 cents per week, and the other at the rate of $12.07, per week. The only reasonable inference to be drawn from this award is that the board did not find that either child was living with the father at the time of his death. If both had been living with the father at the time of his death, each, under the law, would have been conclusively presumed wholly dependent, and the compensation would, under the law, have been divided equally between them. If neither of them had been living with the father, but if, under the facts, the law imposed upon the father the obligation of supporting both of them, each of them, under the law, would have been wholly dependent, and the compensation should have been divided equally between them. If the board had found that Amos was living with his father, and that Ernest was living with and being partially supported by his mother, Amos would have been conclusively presumed to be wholly dependent, and entitled to the whole of the compensation awarded. If, on the other hand, neither was living with the father at the time of his death, but both were, under the law entitled to be partially supported by the father the amount of the compensation, under the law, should have been divided between them, “according to the relative extent of their dependency.” Since the board divided the compensation between them, in unequal parts, the inference is that the board acted upon the theory that each was partially dependent, and that neither was totally dependent.

[1] Appellant contends that if the children were not living with the father, he was not under a legal duty to support either of them. We will first consider this contention as it applies to Amos. Did the laws of this state impose an obligation on the father to support him, while he was in the care and custody of an institution under a commitment issued by a court of general jurisdiction, when there was no order or judgment requiring the father to pay any part of the cost of his care, and when the county was liable for and was paying the whole cost of his support in such institution?

The circuit court of La Porte county is a court of general jurisdiction and has exclusive jurisdiction in all matters relating to children, including juvenile delinquents and in all cases wherein the custody and legal punishment of delinquents are in question. Section 1705, Burns' 1926 (Acts 1903, p. 516, c. 237). Section 3 of this act provides, among other things, that: Whenever a complaint is pending against a boy before he has completed his sixteenth year for the commission of any offense not punishable with life imprisonment or death, the matter shall be referred to a probation officer for investigation and report. If, after the consultation with the probation officer, the cause is not dismissed, “a summons shall be issued by the clerk requiring the person or persons having custody or control of the child, or with whom the child may be, to appear with the child at a place and time which shall be stated in the summons; said summons shall also contain a notice requiring such person or persons to show cause, if any, why such child shall not be made a public ward or a ward of the court.” If such person is not the parent or guardian of the child, the parent or guardian shall be notified of the pendency of the cause. If, upon the trial, it shall appear that the child is guilty of the offense charged, the court may, among other things, order that such child be placed in the home where the county's dependent children are kept, or it may be committed to some institution devoted to the care of such children, for a definite or indefinite period, where it shall be kept at the per diem fixed by law and to be paid by the county. In every case where the the court commits a child to the care and custody of any institution, other than a state institution, the court may make an order requiring the parent or guardian to show cause why he should not pay in whole or in part, for the support of such child while it is in such institution, and the court may render judgment requiring the parent or guardian to pay such amount as is found just. If the health of the child requires it, the court may place such child in a public or private hospital or institution for treatment or special care.

Did the act of the court in committing Amos to the institution, without an order or judgment requiring the father to pay any part of the cost of his care and support in such institution, relieve the father from his legal obligation, or was the obligation to support such child while in such institution imposed by the laws of the state in the absence of such an order or judgment?

[2] At common law the king, as parens patriæ, had the supreme guardianship of all infants within the realm, and the duty of protectingthem from wrong; and it is the modern equivalent of this doctrine that the parent's right is always subject to the control of the state and its courts. 20 Ruling Case Law, 597; Jones v. Darnell, 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545. The supremacy of the state over the rights and guardianship of the parents is best illustrated by cases like the one now under consideration where the child is taken from the parent by administrative proceedings instituted by the state and committed to some institution.

“The obligation to support and...