Ex parte Cline

• Decision Date: 11 June 1925
• Docket Number: 6 Div. 444
• Citation: 213 Ala. 599,105 So. 686
• Parties: Ex parte CLINE. v. CLINE. McCOY
• Court: Alabama Supreme Court

105 So. 686

213 Ala. 599

Ex parte CLINE.

McCOY v. CLINE.

6 Div. 444

Supreme Court of Alabama

June 11, 1925

Rehearing Denied Oct. 22, 1925

Certiorari to Circuit Court, Jefferson County; Joe C. Hail, Judge.

Petition of Earl Cline for certiorari to the Circuit Court of Jefferson County to review the judgment of that court in a proceeding by Lennie Ross McCoy, Jr., suing by next friend against the petitioner under the Workmen's Compensation Act. Writ denied; judgment affirmed.

J.P Mudd, of Birmingham, for appellant.

D.G Ewing, of Birmingham, for appellee.

BOULDIN J.

Certiorari to review the judgment of the circuit court awarding compensation to a dependent grandchild of a deceased employé under the Workmen's Compensation Law.

Lennie Ross McCoy, Jr., a child 6 years of age, is a grandson of R.J. McCoy, the deceased employé. Lennie Ross McCoy, Sr., son of R.J. McCoy and father of claimant, died when the latter was about 18 months of age. His mother entered into a contract in writing with his grandparents, R.J. and Jennie McCoy, by which they agreed to take, support, and educate him as their own child, and allow him to inherit "with their own children equally their estate." Thereafter the child lived with his grandparents, and was wholly dependent upon them for support until the grandfather's death.

The question of merit in the case is whether claimant is a "child" or "orphan" within the meaning of the law defining dependents entitled to compensation.

One inquiry presented is: Can the claimant take as an adopted child?

"(b) 'Child' or 'children' include posthumous children and all other children entitled by law to inherit as children of the deceased, also stepchildren who were members of the family of the deceased at the time of the accident, and dependent upon him for support." Code 1923, § 7596.

The general language, "all other children entitled by law to inherit as children of the deceased" is broad enough to cover adopted children. In Ex parte Shaw, 210 Ala. 185, 97 So. 694, the court impliedly assumes that a child legally adopted pursuant to our statute so as to inherit as such is within this definition. It is a direct authority to the effect that a child merely receiving support, and standing toward deceased in no other relation than that of a person in loco parentis, is not included. Such appears to be the general rule. 1 Schneider, 956, 957.

There was in this case no legal adoption as required by the law of Alabama. The written contract between appellee's mother and his grandparents was made in the state of Georgia. Whether sufficient in that state we need not inquire, since adoption of a child has no extraterritorial effect. Each state makes its own laws of descent and distribution. Brown v. Finley, 157 Ala. 424, 47 So. 577, 21 L.R.A. (N.S.) 697, 131 Am.St.Rep. 68, 16 Ann.Cas. 778.

Appellee suggests that in this case the child was in equity entitled to inherit; that a court of equity will decree a specific performance of the contract to that end. Prince v. Prince, 194 Ala. 455, 69 So. 906.

Conceding this view, we cannot concur in the conclusion that in the summary proceedings provided under the Compensation Law it is contemplated the circuit court may assume equity jurisdiction to determine that question. These proceedings call for no other parties than the employer and claimant of compensation, while other parties may be necessary to a bill for specific performance.

To decide whether appellee is a "child" or "dependent orphan," we must look to other status than that of an adopted child. In studying the scheme of dependency as a basis for compensation in cases of death of the employé, we note: The statute first declares certain conclusive and prima facie presumptions of dependency in favor of wife and children. Section 7552. This statute is mainly remedial. It fixes a legal dependency in certain cases, not open to question except upon grounds stated; a prima facie dependency in other cases, thus casting upon the employer the burden to disprove dependency in fact. In all cases not covered by this section the burden is left on the claimant to show actual dependency.

We take occasion to note that in codifying this section there is an omission of children under 16 years of age as legal dependents. The context shows this a clerical omission, and we will regard this provision in the original act as unrepealed. Acts 1919, p. 217, § 14(b). It is manifest that children within this conclusive presumption of dependency include only those of the first degree: children born into the family of the deceased; dependents by nature, for whose care, support, and training the law makes the father responsible.

The statute then lists total dependents in the order they shall take, and defines total dependency thus:

"Total Dependents.--Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law and father-in-law who were wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his total dependents, and payment of compensation shall be made to them in the order named." Section 7553.

Partial dependency is then declared in like terms. Section 7554.

Then follows the schedule of compensation to the several classes of dependents: (1) To the dependent widow, where there is no dependent child; (2) to the dependent widow and one dependent child, two dependent children, and so on. Section 7554.

Then follows:

"If the deceased employé leave a dependent orphan, there shall be paid thirty per cent. of the average weekly earnings of deceased with ten per cent. additional for each additional orphan, with a maximum of sixty per cent. of such wages." Section 7556.

This is followed by schedules of compensation to the dependent husband, where there is no dependent child, and to other classes...