Guevara v. Inland Steel Co., 17876

• Citation: 228 Ind. 135,90 N.E.2d 347
• Decision Date: 17 February 1950
• Docket Number: No. 17876,17876
• Parties: Juana GUEVARA, appellant, v. INLAND STEEL COMPANY and Lupe Guevara, a Minor, appellees.
• Court: Indiana Supreme Court

Page 347

90 N.E.2d 347

228 Ind. 135

Juana GUEVARA, appellant, v. INLAND STEEL COMPANY and Lupe Guevara, a Minor, appellees.

No. 17876.

Supreme Court of Indiana.

Feb. 17, 1950.

Fischer, Bosgraf & MacKenzie, Chicago, Ill., Harold J. Douthett, Hammond, (Harold J. Douthett, Hammond, Leonard Bosgraf, Kellam Foster, Chicago, Ill., of counsel), for appellant.

Baker & Daniels, Indianapolis, Dorsey, Travis & Tinkham, Hammond, for appellees.

EMMERT, Judge (dissenting).

This appeal came for the consideration of this court on a petition to transfer, which was denied. The opinion of the Appellate Court, Guevara v. Inland Steel Company, 1949, Ind.App., 88 N.E.2d 398, 402, held that if the claimant, under the Workmen's Compensation Law, had lived with the decedent as his wife, without benefit of ceremonial marriage during a period of residence in both Illinois and Indiana, 'it is sufficient under this statute if appellant was the common-law wife of decedent in Indiana at the time of his death, and if the common-law relationship, both in Illinois and Indiana, existed openly and notoriously for a period of not less than five years immediately preceding decedent's death and during all of this time fulfilled the requirements of the laws of Indiana relating to common-law marriages, including the requirement of capacity, under the Indiana law, to contract such a marriage.' Royse, J. dissented with an opinion with which I agree. Since the opinion of the Appellate Court does not fit in any known pattern of the authorities on conflict of laws and statutory construction, further notice of the departure should be brought to the attention of the profession.

In 1943 this court decided in Russell v. Johnson, 220 Ind. 649, 46 N.E.2d 219, that under § 38 of ch. 172 of the 1929 Acts, § 40-1403, Burns' 1940 Replacement, defining dependents under the Workmen's Compensation Act, a married woman living in adultery with the decedent, and depending upon him for support at the time of his death, could be a dependent under the act. The court there recognized the matter of dependency was one for legislative determination in the following language: 'This matter is within the control of the General Assembly and if that body concludes on a reconsideration of the subject that the Workmen's Compensation Act of 1929 does not express the proper public policy, it is subject to amendment. It is not for us to legislate.' 220 Ind. at page 666, 46 N.E.2d at page 226.

In 1947 the Workmen's Compensation Act was amended on dependency, the change material to this appeal being 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:

'(a) A wife upon a husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. The term 'wife' as used in this subsection shall exclude a common-law wife unless such common-law relationship shall have existed openly and notoriously for a period of not less than five years immediately preceding the death.' § 40-1403a, Burns' 1940 Replacement Supp., Acts 1947, ch. 162, § 8 p. 523.

'Words and phrases shall be taken in their plain, or ordinary and usual, sense. But technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.' § 1-201, Burns' 1946 Replacement, 2 R.S.1852, ch. 17, § 1, p. 339. The provisions of this section are clear and unambiguous, and there is no occasion to resort to any rules of statutory construction for the determination of the legislative intent. Tucker v. Muesing, 1942, 219 Ind. 527, 39 N.E.2d 738. The rule for this court to follow was correctly declared in Kunkalman v. Gibson, 1908, 171 Ind. 503, 509, 510, 84 N.E. 985, 987, 86 N.E. 850, as follows: '* * * Perhaps no better statement can be found of the doctrine that exceptions should not ordinarily be declared by the courts where the Legislature speaks broadly than is contained in the City of Pittsburgh v. Kalchthaler (1886), 114 Pa.St. 547, 552, 7 A. 921, wherein the Supreme Court of Pennsylvania said: 'We think it is always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent, or absence of intent, which would prevent the application of the words actually used to a given subject. Such a practice is really substituting the theories of a court which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the lawmaking power. It is a practice to be avoided * * *. It has been condemned by many textwriters and by many courts. Occasionally it has been departed from, but the path is a devious and a dangerous one, which ought never to be trodden, except upon considerations of the most convincing character and the gravest moment.''

At the time of the adoption of the amendment, the term 'common-law wife' had a well defined meaning under the many well decided cases of this state, and the legal principles for determining the validity of marriages in other jurisdictions were well settled. It is obvious that the legislature intended to change the existing rule on dependencies as declared in Russell v. Johnson, 1943, 220 Ind. 649, 46 N.E.2d 219, supra. The legislature had the right to provide that a common-law wife be excluded unless the relationship as common-law wife shall have existed openly and notoriously for not less than five years immediately preceding death. Anything less than that is barred, and it is not for this court to substitute its judgment for that of the legislature in its determination of desirable public policy.

The fallacy in the majority opinion lies in the assumption that there could be created a common-law relationship or the status of common-law marriage in Illinois which could be tacked on to the period of residence in Indiana, so that the status could exist openly and notoriously for more than five years. The statutes of Illinois require ceremonial marriage to be made of record and prohibit common-law marriages in that state. ¹

'Marriage is a status resulting from a contract to marry entered into by a man and a woman capable of making such a contract. Cohabitation cannot of itself constitute marriage.' Compton v. Benham, 1908, 44 Ind.App. 51, 58, 85 N.E. 365, 367. At an early date this court said: 'In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil policy. Hence, as between husband and...