Insurance Co. of North America v. Jewel, 43609

• Decision Date: 10 October 1968
• Docket Number: Nos. 1,No. 43609,2,3,43609,s. 1
• Citation: 118 Ga.App. 599,164 S.E.2d 846
• Parties: INSURANCE COMPANY OF NORTH AMERICA et al. v. Lizzie B. JEWEL
• Court: Georgia Court of Appeals

Page 846

164 S.E.2d 846

118 Ga.App. 599

INSURANCE COMPANY OF NORTH AMERICA et al. v. Lizzie B. JEWEL.

No. 43609.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Oct. 10, 1968.

Rehearing Denied Nov. 4, 1968.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellants.

Conyers, Fendig, Dickey & Harris, Albert Fendig, Jr., Brunswick, Erwin, Birchmore

& Epting, Nickolas P. Chilivis, Athens, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

The sole question here is whether a claimant, who entered into a ceremonial marriage with the employee when claimant had a living husband and the employee a living wife, although claimant did not know the employee had such wife at the time of the ceremonial marriage to the employee, but discovered this fact a month later and continued to live with the employee, is entitled to an award as a dependent under the Workmen's Compensation Act. Code § 114-414, after clarifying and providing for priority as to certain dependent members of the family of the deceased employee, says: 'In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident . . ..'

There are a variety of cases from other states which have similar statutory provisions.

In cases where the claimant has in good faith entered into the ceremonial marriage with the employee, the courts have generally held the claimant to be entitled to an award based on dependency. Eason v. Alexander Shipyards, Inc. (La.App.), 47 So.2d 114; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P.2d 276; Perry v. Sun Coal Co., 183 Tenn. 141, 191 S.W.2d 181; Nall v. Wakenva Coal Co., 236 Ky. 598, 33 S.W.2d 631; Sanchez v. Tex. Employers' Ins. Ass'n. (Tex.Civ.App.), 51 S.W.2d 818. In cases where there was a meretricious relationship as knowingly living in adultery, most of the courts have denied compensation, basing this denial on grounds of public policy. Day v. Day, 216 S.C. 334, 58 S.E.2d 83; Baldwin v. Sullivan, 201 Iowa 955, 204 N.W. 420, 208 N.W. 218; Blue Diamond Coal Co. v. Hensley, 314 Ky. 85, 234 S.W.2d 317; Hatfield Campbell Creek Coal Co. v. Adams, 275 Ky. 744, 122 S.W.2d 787: Humphreys v. Marquette Cas. Co., 235 La. 355, 103 So.2d 895(2); Fields v. Hollowell & Hollowell, 238 N.C. 614, 78 S.E.2d 740. While some of the text writers, and some cases, and dissenting opinions, have indicated their disapproval of this theory, arguing that the morals of the person should not preclude compensation under the Act when they are otherwise qualified (Kendall v. Housing Authority of Baltimore City, 196 Md. 370, 76 A.2d 767; Russell v. Johnson, 220 Ind. 649, 46 N.E.2d 219; Larson's Workmen's Compensation Law, Vol. 2, § 63.43), and while with this we might be inclined to agree, yet where, as in the present case, the dependency itself grew out of, or resulted from the immoral act of the claimant, we feel constrained to agree with the majority rule because we do not feel that immorality should be rewarded, or condoned as a means of securing support. Nor do we adhere to the view that the Workmen's Compensation Act should, under the guise of liberal construction, be so construed as to provide a statutory reward for immoral conduct. There is a great difference between an immoral person being dependent upon another for support in cases, such as this, where the support itself arose out of the immorality of the claimant and cases where the support had no relation to the immorality. A daughter who is a prostitute may be dependent upon a father. In such a case, where morals have nothing to do with the dependency, she would, upon his death under the conditions prescribed in the Workmen's Compensation Act, be entitled to compensation. Under these circumstances, her morals have nothing to do with the matter. Further, we feel that we are bound to this conclusion in view of two decisions of this court which are in accord with what we have ruled. In Reese v. American Mut. Liab. Ins. Co., 67 Ga.App. 420(3), 20 S.E.2d 773, an almost identical factual situation was involved. There was a living wife who had withdrawn her claim and who had been found by the single director to have abandoned the employee husband. The director further found as to the other claimant who was living in adultery with the employee that 'the approval of the agreement to pay some person who was not a wife was a nullity as being outside the law and contrary to public policy and void.' On appeal to the full board and then to this court, the award was affirmed. It is obvious that the language 'some person who was not a wife' is limited by the facts of that case to mean a person who was a mistress rather than a wife. In St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga.App. 217, 76 S.E.2d 512, a grandchild of a mistress was involved and the grandchild was held entitled to compensation, and in so holding, the court (page 220, page 515 of 76 S.E.2d) recognized the rule we have here pronounced in the following language: 'As to the contention that Linda Robinson was not entitled to receive compensation because her grandmother, Carrie Bell Simmons, may not have been entitled to claim compensation as a dependent of Rubin Simmons due to her bigamous relationship with him, we need only to state that, even if her conduct, being against public policy, was a bar to her claim, it does not follow that her illegitimate granddaughter, Linda Robinson, would also be barred from showing her actual dependence upon Rubin Simmons, for she was not a party to such illegal conduct.' The rulings in the St. Paul-Mercury Indem. Co. v. Robinson, supra, are therefore in full accord with what we have here ruled.

The case of Zachery v. Royal Indem. Co., 80 Ga.App. 659, 56 S.E.2d 812, upon which one of the dissents is based, decides a question not reached in the majority opinion here, and therefore affords no basis for dissent. In that case, it was merely held that where one entitled to a prior claim of compensation as a dependent, a widow, waives her claim to compensation, then a beneficiary secondarily entitled thereto may recover. With this decision, we have no dispute. What we decide here is that the claimant is not one secondarily entitled or otherwise entitled as a dependent. Whether, if she be so entitled, she could recover, is not the question before the court, nor is any decision made thereon.

Accordingly, the trial court erred in affirming the award of the State Board of Workmen's Compensation granting the claimant compensation under the Act based upon her dependency upon the deceased employee.

Where, as in the present case, the notice of appeal describes a judgment appealed from as 'an order of the Superior Court of Oconee County, Georgia, dated and entered February 6, 1968, said order affirming the award of the full board of the State Board of Workmen's Compensation dated November 19, 1965,' and there is a judgment in the record answering such description except that, though dated February 6, 1968, it was not entered until February 8, 1968, such description is a sufficient 'concise statement of the judgment, ruling or order entitling the appellant to take an appeal,' and sufficiently identifies the order appealed from to meet the requirements of Section 4 of the Appellate Practice Act of 1965 as amended (Ga.L.1965, pp. 18, 20; Ga.L.1966, pp. 493, 495; Code Ann. § 6-802). The decisions in Langdale Co. v. Day, 115 Ga.App. 30, 153 S.E.2d 671; Olson v. Austin Enterprises, Inc., 116 Ga.App. 197, 156 S.E.2d 655; Hardnett v. United States Fidelity & Guaranty Co., 116 Ga.App. 732, 158 S.E.2d 303; Walker v. Walker, 222 Ga. 521, 150 S.E.2d 635; Bowers v. Gill, 222 Ga. 529, 150 S.E.2d 653 do not require a different ruling. Accordingly, the motion to dismiss the appeal is denied.

Judgment reversed.

FELTON, C.J., and QUILLIAN and WHITMAN, JJ., concur.

BELL, P.J., and EBERHARDT and DEEN, JJ., concur specially.

JORDAN, P.J., and HALL, J., dissent.

EBERHARDT, Judge (concurring specially).

While there may be merit in the views of Judges Jordan and Hall as to the proper interpretation of the Compensation Act on the matter of dependency, I do not see how we can reach the result they do under the facts of this case so long as Reese v. American Mut. Liab. Ins. Co., 67 Ga.App. 420(3), 20 S.E.2d 773 stands. We are bound by it. And in Maryland Cas. Co. v. Campbell, 34 Ga.App. 311, 129 S.E. 447 it was asserted that 'The question of dependency is one of fact, to be determined according to the facts and circumstances of each particular case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimant, and the legal or moral obligation of the employee.' (Emphasis...