Green v. Burch

• Decision Date: 24 February 1948
• Docket Number: 37019.
• Citation: 164 Kan. 348,189 P.2d 892
• Parties: GREEN et al. v. BURCH et al.
• Court: Kansas Supreme Court

189 P.2d 892

164 Kan. 348

GREEN et al.
v.
BURCH et al.

No. 37019.

Supreme Court of Kansas

February 24, 1948

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Proceeding under the Workmen's Compensation Act by Gladys L. Green, a deceased workman's widow, Kenneth Eugene Green, a minor, by Gladys L. Green, guardian, Leota Green, and Linda Sue Green and Barbara Ann Green, minors, by Leota Green, guardian, claimants, opposed by W. A. Burch, employer, and the Bituminous Casualty Corporation, insurance carrier. From a judgment awarding compensation to the last-named minors, claimants Gladys L. Green and Kenneth Eugene Green and the insurance carrier appeal.

BURCH, J., dissenting.

Syllabus by the Court.

1. During his lifetime the workman and the mother of the child had represented themselves to various parties as being husband and wife and had recognized a two-year-old daughter as being their child, held, the illegitimate child is entitled to recover the benefits provided by the Workmen's Compensation Act as a dependant of the deceased workman.

2. When, during his lifetime, a workman recognizes that an expected child will be the progeny of himself and his unlawful wife, the posthumous child born after the accidental death of the workman can recover as a dependent under the Workmen's Compensation Law. [189 P.2d 893]

Wayne Coulson, of Wichita (Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Manford Holly, and Dale M. Stucky, all of Wichita, on the brief), for the appellant Bituminous Casualty Corporation.

K. W. Pringle, of Wichita, for appellees.

BURCH, Justice.

A new question in Kansas is presented by this appeal. Stated succinctly, the question is: Can illegitimate children recover as dependents under our workmen's compensation act? A second question likewise develops in the case: Can illegitimate posthumous [164 Kan. 349] children recover compensation as dependents of deceased workmen?

The district court allowed recovery of compensation to an illegitimate daughter who was born approximately two years before the workman's death, and to a second illegitimate daughter who was born about four months after his death. During the last several years of his lifetime, the workman and the mother of the children, although not lawfully married to each other, had maintained a home together and represented themselves to various parties as being husband and wife; the workman had recognized the two-year-old daughter as being their child and had told friends and relatives that he and the mother of the children were expecting another child. The case presents no controversy as to the sufficiency of evidence to establish such facts. The additional facts are not essential to decision and, therefore, need not be stated.

Perhaps it is prudent, for the purpose of precaution, to emphasize at this point that the questions presented are limited to whether illegitimate children can recover compensation under the provisions of the Workmen's Compensation Act. The court in this case is not concerned with questions relative to whether illegitimate children should be regarded in the same category as legitimate children at common law, under other statutes, or in any other type of case. Our consideration is confined to the construction which should be given to the appliable provisions of our Workmen's Compensation Act.

The dilemma which demands decision in this case develops from the definition of 'dependents' in our statute, G.S.1935, 44-508(j), which reads:

"Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. 'Members of a family,' for the purpose of this act, means only legal widow or husband, as the case may be, and children; or if no widow, husband, or children, then parents or grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren then brothers and sisters. In the meaning of this section parents include step-parents, children include step-children, and grandchildren, include step-grandchildren, and brothers and sisters include step-brothers and step-sisters, and children and parents include that relation by legal adoption. * * *.' (Emphasis supplied.)

The appellant invokes the maxim expressio unius est exclusio alterius and calls our attention to the significant fact that the legislature has seen fit to provide that 'dependents' includes not only children, but grandchildren, step-children and adopted children, but [164 Kan. 350] that the legislature has not included illegitimate children in any portion of our statute. The appellant, therefore, asserts, with proper emphasis, that this court should not read into the statute the term 'and illegitimate children' when the legislature has not seen fit to do so, and that specific definitions of a term in a statute, by implication, exclude all others (Citing City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P.2d 807). The appellee insists, with justifiable accentuation, that this court should not read into the statute the words 'only legal' before 'children' because the legislature has seen fit to apply such a limitation exclusively to a widow or a husband and not to apply it to children.

The appellant also argues that the legislature, by its enactments, has shown itself familiar with the ordinary and legal meaning of the word 'children' and that ordinarily such term does not include illegitimate children and that the legislature, as early as 1868, in enacting what is now G.S.1935, 22-118, 22-121 and 22-122, recognized [189 P.2d 894] the distinction between children and illegitimate children by providing that illegitimate children should inherit only from their motion and not from their father unless they had been recognized by him as his children; that the statute under consideration, therefore, must be taken in the sense in which it was understood at the time it was enacted (citing State ex rel. v. Moore, 154 Kan. 193, 117 P.2d 598). Appellant further contends that there is no reason why a child taken into a family under an unperformed agreement to adopt should be entitled to less consideration than a step-child, but that the legislature included one and did not mention the other and that it is, therefore, incumbent upon this court to construe the statute within its own limits (citing Ellis v. Nevius Coal Co., 100 Kan. 187, 163 P. 654).

Counsel for the appellant concede that illegitimate children may recover workmen's compensation as 'members of a family' under many statutes which do not define or limit such a phrase and that illegitimate children may recover under workmen's compensation statutes which refer to other general classifications such as 'actual dependents,' or members of the deceased's 'household.' In such cases, under a theory which has been...