Day v. Town Club, 47676

• Citation: 45 N.W.2d 222,241 Iowa 1264
• Decision Date: 12 December 1950
• Docket Number: No. 47676,47676
• Parties: DAY v. TOWN CLUB et al.
• Court: Iowa Supreme Court

Page 222

45 N.W.2d 222

241 Iowa 1264

DAY v. TOWN CLUB et al.

No. 47676.

Supreme Court of Iowa.

Dec. 12, 1950.

Lorna L. Williams and Emmert, James, Needham & Lindgren, Des Moines, for claimant-appellant.

Emerett C. Hansen and Don G. Allen, Des Moines, for intervenor-appellee.

Comfort, Comfort & Irish and Berry O. Burt, Des Moines, for defendants-appellees.

HAYS, Justice.

This is an appeal from a decree sustaining an award of death benefits under the Workmen's Compensation Act. Liability is admitted and the issue presented is who are the beneficiaries under Section 85.42, Code 1946, I.C.A.

Section 85.42, Code 1946, I.C.A., provides: 'Conclusively presumed dependent. The following shall be conclusively presumed to be wholly dependent upon the deceased employee: 1. The surviving spouse, (with exceptions not here applicable). 2. A child or children under sixteen years of age, and over said age if physically or mentally incapacitated from earning, whether actually dependent for support or not upon the parent at the time of his or her death. An adopted child or children or stepchild or stepchildren shall be regarded the same as issue of the body. 3. A parent of a minor who is receiving the earnings of the employee at the time when the injury occurred. Stepparents shall be regarded as parents.'

Briefly, the facts are: Thomas Day, the deceased employee, died in May 1948. In 1943 he was divorced by his then wife Wanda Day (now Coffman), she being given the custody of their two daughters Veronica and Hyla Patricia, now about 9 and 11 years of age respectively. In 1943 the decree was modified whereby decedent obtained custody of Hyla Patricia. Thereafter decedent married Mildred Day, surviving spouse, to which union was born a daughter John. Wanda Day married Wayne Coffman in 1944 and Veronica Day was taken into their home as a member of the family. There is a dispute in the facts as to where Hyla Patricia made her home, the Commissioner finding it to be with decedent. However, in view of our holding, we do not deem this to be material.

The Court awarded Mildred Day and daughter John, $13.34 per week for 300 weeks; Hyla Patricia Day, $6.44 per week for 300 weeks and denied an award to Veronica Day. Only Mildred Day, claimant, has appealed.

Appellant asserts that under the rule announced in Hoover v. Central Iowa Fuel Co., 188 Iowa 943, 176 N.W. 945, Wayne Coffman, as stepfather, is substituted for the natural father and that only as to him is Hyla Patricia to be deemed a dependent under Section 85.42, Code 1946, I.C.A. She further contends that the relationship of stepfather-stepchild is created by his marriage to Wanda Day and whether or not this relationship is recognized by the stepfather by taking the child into his home as a member of the family, is immaterial. That the test announced in Menefee v. Chesley, 98 Iowa 55, 66 N.W. 1038; 62 A.L.R. 166, is not applicable.

Both the Commissioner and the trial court adopted the theory that, in a legal sense, the relationship of stepfather-stepchild is created only where the child has been accepted as a member of the family. With this as a yardstick, they followed the rule announced in the Hoover case by granting benefits to Hyla Patricia, who under their finding was not so recognized, and denying the same to Veronica, who had been thus recognized. This is in accord with the Hoover decision if it is examined strictly in the light of its own facts. However, appellant places a much narrower interpretation upon the rule there announced, asserting that in all cases where a child's parent marries, there automatically arises the relationship of stepparent-stepchild, irrespective of whether or not the child is accepted into the family and thus ceases to be presumed a dependent of the natural parent. We concede that it has been so accepted and cited as authority therefor and we thus deem it proper to re-examine the same, particularily in view of the provisions of the present Act.

The Hoover case was decided in 1920. At that time the Compensation Act, Section 2477-m16, Code Supplement 1913, in addition to providing, as does the present Act, Section 85.42, supra, that a child under 16 years of age is conclusively presumed to be wholly dependent 'whether actually dependent for support or not upon the parent at the time of his or her death', also provided that 'stepparents shall be regarded in this act as parents'. This last quote is not in the present act. The court considered this statement to be an exception to the first quote, above, and said, 176 N.W. at page 946: 'The first provision leaves the right to recover on account of the death of a 'parent.' The second one necessarily deals with cases where there is a stepfather. It does so by declaring that for the purposes of the act the stepparent is the parent. There is no where an indication that anyone can have more than one set of 'parents.' * * * The sole purpose of the last and qualifying clause,...