Bassier v. Connelly Const. Co.

• Decision Date: 02 June 1924
• Docket Number: No. 13.,13.
• Citation: 198 N.W. 989,227 Mich. 251
• Parties: BASSIER v. CONNELLY CONST. CO. et al.
• Court: Michigan Supreme Court

227 Mich. 251

198 N.W. 989

BASSIER

v.CONNELLY CONST. CO. et al.

No. 13.

Supreme Court of Michigan.

June 2, 1924.

Certiorari to the Industrial Accident Board.

Proceedings under the Workmen's Compensation Act by Madeline Bassier against the J. Connelly Construction Company and the Standard Accident Insurance Company. From award for applicant defendants bring certiorari. Award vacated.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Keena, Lightner, Oxtoby, Hanley & Crawford, of Detroit, for appellants.

John J. Gafill and Frederic T. Harward, both of Detroit, for appellee.

FELLOWS, J.

The workman met his death through an accident which arose out of and in the course of his employment. Plaintiff, the sole claimed dependent, is the illegitimate child of his daughter. She has lived at Eecloo, Belgium, with one Clementine Barbyon, who took her after her mother's death. Deceased contributed to her support, but she was not a member of his family. Counsel agree that the case is controlled by the following provision of subdivision (c) of section 5436, C. L. 1915:

‘No person shall be considered a dependent, unless a member of the family of the deceased employé, or bears to him the relation of husband or widow, or lineal descendant, * * * or brother, or sister.’

[1] In Roberts v. Whaley, 192 Mich. 133, 158 N. W. 209, L. R. A. 1918A. 189, this court held that illegitimate children of the workman who resided with him and were maintained by him were dependents within the meaning of the act. In this holding we were in accord with the great weight of authority in states having statutory provisions similar to ours. The case has been frequently cited by courts of other jurisdictions, and, as a general rule, where a different result has been reached, it was due to a different statutory provision. We shall consider some of the cases from other jurisdictions presently. In Holmberg v. Cleveland-Cliffs Iron Co., 219 Mich. 204, 189 N. W. 26, we held that a cousin who for 27 years had been a member of the deceased workman's family was a defendant within the meaning of the act. In King v. Peninsular Portland Cement Co., 216 Mich. 335, 185 N. W. 858, an award to minor children, said by the wife to be illegitimate, was affirmed but we there held that public policy forbade the wife from so testifying, and that such testimony should not be considered, even though it had not been objected to. In the instant case a different situation is presented. The claimed dependent is not the illgitimate child of the workman, but of his daughter. She had never lived in this country, and was not a member of his family. If defendant is liable, such liability must be predicated on the theory that she is a lineal descendant of deceased.

I shall first consider some of the cases from other jurisdiction having under consideration the same question presented in the Roberts Case. In Gritta's Case, 236 Mass. 204, 127 N. E. 889, under a statute similar to ours, it was held that illegitimate children could not come within the term ‘children’ found in the act, but where they were members of the family they could come within the term ‘family,’ and liability was sustained. Roberts v. Whaley, supra, was cited to sustain the holding. Harry Scott's Case, 117 Me. 436, 104 Atl. 794, is an interesting case. Roberts v. Whaley, supra, is considered at some length, and followed, but it was expressly stated:

‘We do not think that illegitimate children come within the class defined in paragraph (c) of subdivision VIII of section 1 of chapter 50, R. S., and so are conclusively presumed to be dependents of a deceased parent. Notwithstanding the rule of liberal construction expressly enjoined upon those interpreting the act, the application of the familiar rule of construction, ‘expressio unius est exclusio alterius,’ seems to us upon reason and authority to be proper in this instance.'

The Maine statute contains a ‘family’ provision similar to ours, and the provision cited by the court as being inapplicable has reference to the ‘child or children’ of the deceased. Roberts v. Whaley, supra, was cited in Piccinim v. Connecticut Light & Power Co., 93 Conn. 423, 106 Atl. 330, and under a ‘family’ provision similar to ours (section 5388, Gen. Stat. Conn. 1918) illegitimate children who were members of deceased's family were held to be dependents. But the court declined to follow the contention of counsel that such position was strengthened by the other provision of the act having reference to children.

The Maryland act (art. 101, Anno. Code of Maryland) does not contain the ‘family’ provision found in our act. In Scott v. Independent Ice Co., 135 Md. 343, 109 Atl. 117, the Court of Appeals of that state had before it the question of whether the provisions of the act (section 36), making ‘child or children under the age of sixteen years' dependents, applied to illegitimate children. There was a careful review of the authorities, including Roberts v. Whaley, supra, and it was held that in using the word above quoted the Legislature had reference only to legitimate children. The court does not seem to question the propriety of the holding in the Roberts and other cases under statutes having the ‘family’ provision but holds that the word children means legitimate children, and does not include illegitimate offspring. A similar result was reached in New York in Bell v. Terry & Tench Co., 177 App. Div. 123,163 N. Y. Supp. 733, where the construction to be given the words ‘child’ and ‘children’ in the New York Act (Consol. Laws, c. 67) was under consideration, and it was held that the words meant only legitimate children, and excluded illegitimate ones. The New York court has also held that the adopted child of a daughter of a deceased workman was not a dependent within the meaning of the New York act. Winkler v. New York Car Wheel Co., 181 App. Div. 239,168 N. Y. Supp. 826. But it was held in People v. Rose Co., 182 App. Div. 438,169 N. Y. Supp. 584, that a grandchild who had been given to the grandparents when only a few days old, and who had always lived with the grandparents, was a dependent of the grandfather. No question of legitimacy was involved in this case however. The Illinois act does not contain the ‘family’ provision fould in our act, and in Murrell v. Industrial Com., 291 Ill. 334, 126 N. E. 189, it was held that its provisions did not extend to illegitimate children. It was there said:

‘The Workmen's Compensation Act mentions only children, by which is ordinarily meant legitimate children, and there is no word in the act which indicates that the Legislature used the word in any other than its ordinary sense. Indeed, in paragraph (b) the word ‘or other lineal heir,’ used in connection with the words ‘any widow, child, parent, grandparent,’ seem to imply that the child, parent, gradparent mentioned must be a lineal heir-that is, that the relation must be legitimate.'

Cases under the British act will be found holding that illegitimate children of the workmen are under certain circumstances dependents within the meaning of the act, and by the act of 1906 Parliament included grandparents of illegitimate children within its purview, 6 Edw. VII, p. 337.

A consideration of these cases makes it clear that illegitimate...