Fogle v. Pullman Standard Car Mfg. Co.

• Decision Date: 04 April 1961
• Docket Number: No. 19426,No. 2,19426,2
• Citation: 133 Ind.App. 95,173 N.E.2d 668
• Parties: Margaret FOGLE, Appellant, v. PULLMAN STANDARD CAR MANUFACTURING COMPANY, a Corporation, Appellee
• Court: Indiana Appellate Court

Page 668

173 N.E.2d 668

133 Ind.App. 95

Margaret FOGLE, Appellant, v. PULLMAN STANDARD CAR MANUFACTURING COMPANY, a Corporation, Appellee.

No. 19426.

Appellate Court of Indiana, Division No. 2.

April 4, 1961.

Rehearing Denied May 16, 1961.

George A. Pawloski, Michigan City, for appellant.

Thomas C. Mullen, Michigan City, for appellee.

PFAFF, Presiding Justice.

This appeal challenges an award by the Full Industrial Board denying compensation to the appellant. That part of the award necessary for an understanding of the issues here involved reads as follows:

'That on the 18th day of February, 1958, one Elias Thomas, plaintiff's decedent, was in the employ of the defendant at an average weekly wage in excess of Sixty-Five Dollars ($65);

'That on said date he sustained personal injuries by reason of an accident arising out of and in the course of his employment with the defendant, which said accident resulted in his immediate death;

'That the defendant had knowledge of said accidential injury and death and did pay for the statutory burial expenses for the said plaintiff's decedent;

'That at the time of said accidental injury and death the decedent did not leave surviving him any dependents, either presumptive or factual, who were dependent upon him for their maintenance and support;

'That at the time of his death and for some time prior thereto the plaintiff herein, decedent's daughter, lived with the said decedent and took care of the said decedent's home for him during said period of time when she resided in his household, and was not gainfully employed.

'It is further found that on the 12th day of November, 1949, the plaintiff married one James Fogle;

'That on August the 5th 1953, the said plaintiff's husband, James Fogle, died, and that later she moved in the home of her father, said plaintiff's decedent, where she remained and was still living there at the time of the said decedent's death.

'It is further found that the said plaintiff was not a presumptive or factual dependent of the said decedent at the time of the said decedent's accidental injury and death.' (Emphasis supplied.)

The review presents but one question: Whether the words 'unmarried child' as used in the Workmen's Compensation Act, § 40-1403a(f), Burns' 1952 Replacement, includes a child whose marriage has been terminated, or is limited to a child who has never been married. The Statute reads in part as follows:

'The following persons are conclusively presumed to be wholly dependent for support upon a deceased employee and shall constitute the class known as presumptive dependents in the preceding section: * * *

'(f) An unmarried child over the age of eighteen (18) who at the time of the death of the parent is keeping house for and living with such parent and is not otherwise gainfully employed.

'As used in subsections (c), (d), (e) and (f), the term 'child' shall include stepchildren, legally adopted children, posthumous children and acknowledged illegitimate children. The term 'parent' shall include stepparents and parents by adoption. * * * (Acts 1929, ch. 172, Sec. 38a, as added by Acts 1947, ch. 162, Sec. 8, p. 523.)'

Appellant's father sustained personal injuries by reason of an accident arising out of and in the course of his employment with appellee, which accident resulted in his immediate death.

At the time of his death and for some time prior thereto appellant, who is over the age of eighteen years and a widow kept house for and lived with her father and was not otherwise gainfully employed.

The Industrial Board concluded that appellant was not a presumptive dependent and found against her on her application.

We find the following in 91 C.J.S. p. 503:

'Unmarried. 'Unmarried' is a word of flexible meaning, and it has no fixed meaning, no fixed technical meaning in law, with the result that the authorities do not always agree as to the significance of the term.

"Unmarried' means single; having no husband or no wife; not married; and the last is the literal sense of the word.

'Those who are not married may be properly separated into two classes: Those who have never been married and those who have been married, but whose marriages have been dissolved by death or by divorce; and the word 'unmarried' may properly, and in its literal sense, be applied to either class. Which class is meant by the use of the word in a particular case must be determined by the connection in which it is used, and, if in an instrument, by the language of the instrument as a whole, and the purposes to be effected thereby.

'The primary meaning which in most instances is also the ordinary meaning of the word 'unmarried' is never having been married, or, without having been married; but the word is not always used in this sense, and it may be used in its secondary or less accustomed sense, and in this sense it means not being married at the time in question; not having a spouse at the time in question; not having a husband or wife at the time in question. Accordingly, 'unmarried,' in this sense, may be used of a widow or widower, and of a divorced person.

'It has been said that numerous cases may be cited in support of the two meanings of the word, and that courts as well as lexicographers have held either use to be correct and justified. While it has been said that the word is more frequently employed to refer to people who have never been married than it is to refer to widows, widowers, or divorced persons, and in the absence of context showing a contary intention, 'unmarried' is to be construed according to its ordinary or primary meaning, that is, never having been married, only slight circumstances will be sufficient to give 'unmarried' the meaning of not having a husband or wife at the time in question.' (Emphasis supplied.)

Webster's New International Dictionary, Second Edition, defines 'Unmarried' as follows:

'Unmarried, adj. Not married; specif., Law, designating: a. One who has not been married. b. One who has been divorced; also, sometimes, a widow or widower.'

Other similar definitions from various law dictionaries are called to our attention. See also Words & Phrases, Vol. 43. pp. 334, 335.

The Workmen's Compensation Act is grounded in justice and should be liberally construed to accomplish the end for which it was enacted. Blue Ribbon Pie Kitchens v. Long, 1952, 230 Ind. 257, 261, 103 N.E.2d 205; Pollock v. Studebaker Corporation, 1952, 230 Ind. 622, 105 N.E.2d 513.

The language in which the Workmen's Compensation Act is couched must be given such an interpretation as will give effect to the purpose and intent of the legislature in enacting the Act. The Act, being remedial in nature, should be given a liberal construction to accomplish the purposes for which it was enacted, and accordingly, it should be liberally construed in favor of employees or beneficiaries. However, the rule of liberal construction does not permit the law to be distorted so that compensation will be granted in violation of specific statutory provisions. 30 West's Indiana Law Encyclopedia, § 5, p. 256, 257 and cases cited. See also 30 West's Indiana Law Encyclopedia, § 62, pp. 306, 307.

While there can be no doubt that Workmen's Compensation Statutes are in derogation of the common law, such legislation falls in a class which ...