C. F. Wheeler Co. v. Pullins

• Decision Date: 18 December 1942
• Citation: 11 So.2d 303,152 Fla. 96
• Parties: C. F. WHEELER CO. et al. v. PULLINS, etc.
• Court: Florida Supreme Court

11 So.2d 303

152 Fla. 96

C. F. WHEELER CO. et al. v. PULLINS, etc.

Florida Supreme Court

December 18, 1942

Rehearing Denied Feb. 1, 1943.

Appeal from Circuit Court, Dade County; Paul D. Barns Ross Williams, and Worth W. Trammell, Judges.

McKay Dixon & DeJarnette, of Miami, for appellants.

J. Tom Watson, Atty. Gen., Lewis W. Petteway, Asst. Atty. Gen., and Walter E. Rountree, of Tallahassee, for appellees.

THOMAS, Justice.

The facts in this litigation to which we are to apply the principles and provisions of the Florida Workmen's Compensation Act (Chapter 440, Florida Statutes 1941) are simple. About three months after clephours Pullins died from injuries received in the course of his employment, the woman with whom he had been living continuously for nine months gave birth to a child. Although the mother and Pullins had been married he had not been divorced from a former wife. The lone question is the right of the posthumous illegitimate child to compensation.

It is provided in the law, Section 2, paragraph (12), now Section 440.02 paragraph (13), Florida Statutes 1941, that a "Child' [who may receive benefits under it] shall include a posthumous child * * * or acknowledged illegitimate child dependent upon the deceased * * *.'

Parenthetically, it is our view that the acts of the deceased workman immediately prior to the accident may be construed as an acknowledgment of his parentage of the child for, it will be recalled, he lived with the mother continuously for many months and doubtless he knew that she was enceinte. It is contrary to human experience for a man to continue his cohabitation with a woman as her husband if he entertains doubt that he is the father of the child she is bearing. Having the conviction that there was an acknowledgment by the workman of the paternity of the unborn child, and no point having been made by the appellants of the lack of proof of the dependence, we will omit any further discussion of these qualifications and confine our observations to the simple question which we stated at the outset.

The supreme court of North Carolina had occasion to decide whether a posthumous illegitimate child was entitled to compensation under provisions identical with those we have quoted. It was held that the relationship between father and child was not affected by the birth of the latter after the death of the former and that the 'relationship * * * imposes upon the father the duty to support the child, and confers upon the child the right to support by its father.' Lippard et al. v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 802. We consider this a logical interpretation and believe that the legislature did not, by the use of the disjunctive 'or,' refer to posthumous children in contradistinction to illegitimate offspring born during the parent's life.

Appellants insist that the quoted section considered with another portion of the law [Section 16, paragraph (g), now Section 440.16 paragraph (7), Florida Statutes 1941] providing that 'Relationship to the deceased giving right to compensation * * * must have existed at the time of the accident, save only in the case of after-born children of a marriage existing at such time' precluded recovery in the instant case.

We have the view that at the time of the injury and death there was a...