Maryland Casualty Company v. Chamos

• Decision Date: 20 June 1924
• Parties: Maryland Casualty Company, et al. v. Chamos (Cosmos), et al.
• Court: Kentucky Court of Appeals

Page 820

203 Ky. 820

Maryland Casualty Company, et al. v. Chamos (Cosmos), et al.

Court of Appeals of Kentucky.

Decided June 20, 1924.

Appeal from Pike Circuit Court.

HARMAN, FRANCIS & HOBSON for appellants.

G. R. BLACKBURN, JR., and J. C. CANTRELL for appellees.

OPINION OF THE COURT BY JUDGE THOMAS — Reversing on both the original and cross appeals.

Andrew Chamos, an unnaturalized native of Hungary, was on March 6, 1918, employed by the Sudduth Coal Company as a workman in its coal mine in Pike county, Kentucky, and on that day he sustained an accident in the course of his employment from the effects of which he died. The employer was operating under our Workmen's Compensation Act (sections 4880-4987, both inclusive, of 1922 edition, Kentucky Statutes) and it was insured under that act by appellant, Maryland Casualty Company, and Chamos, before the accident resulting in his death, had accepted the provisions of the act. Appellees, Rosalia B. Chamos, claiming to be the widow of Andrew Chamos, and Rosy and Maria Chamos, claiming to be his infant dependent children, filed their claim with the Workmen's Compensation Board to obtain compensation thereunder for the death of the husband of the former and the father of the two latter. The alleged dependents were never in this country, and according to the record, they were prior to, and at the time of the accident and continuously since then, citizens and residents of Hungary, and were and are, therefore, nonresident aliens. The board found that they were dependents of the deceased, Andrew Chamos, and awarded them under the provisions of section 4903 of the statutes (sec. 22 of the act) only one-half of the amount provided in the act for the death of resident employees. They petitioned the Pike circuit court to review that finding and to direct the board to award them the full amount provided by the statute upon the ground that section 4903 was unconstitutional. The coal company and the Maryland Casualty Company also sought a review of the award in the circuit court upon the ground that the claimants had not proven themselves to be dependents of the deceased, and because thereof they were entitled to no award.

In the meantime the National Custodian of alien property intervened in the cause and asked that whatever sum was awarded be paid to him, while another resident Hungarian, who was a friend of the deceased, made a similar request of the court upon the ground that the dependents, Mrs. Chamos and her two infant children, had duly authorized and empowered him to collect the compensation. All those questions were heard upon the trial in the circuit court and it found and adjudged that the claimants were dependents of the deceased; that they were nonresident aliens, but that notwithstanding that fact it also held that the section of the statute (4903), allowing only half compensation "to alien dependent widows and children, not residents of the United States," was unconstitutional and adjudged that they were entitled to full compensation as provided in the act for the death of an employee. The court did not determine the one to whom the compensation should be paid but reserved that question for future adjudication and in the meantime directed it paid to the master commissioner of the court as a sort of receiver until it should be determined who was entitled to receive and receipt for it. From that judgment the casualty company and the coal company prosecute this appeal, and there are cross-appeals from the court's ruling upon the question as to the one to whom the award should be paid.

The first question on the appeal is whether the evidence was sufficient to show that the claimants were dependents on the deceased employee and as such entitled to the award provided by the statute. In proof of their claim as such dependents they introduced certain copies of Hungarian public records showing the marriage of deceased to appellee, Rosalia B. Chamos, and the births of the other two claimants, Rosy and Maria Chamos. But it is contended that those records were not properly certified or authenticated so as to be competent evidence of the facts they contain. We do not, however, regard it as necessary to the disposition of the case to determine that question, since there was proof by one or more eye-witnesses, who were native Hungarians and who had known the deceased for a great number of years and lived in his immediate vicinity in Hungary, that he was duly married to the appellee, Rosalia B. Chamos, and that afterwards the two other claimants were born as a result of that marriage and while the parties were living together as husband and wife, and that the widow was still unmarried and both she and her two daughters resided in the foreign country. In the cases of Faustre v. Commonwealth, 92 Ky. 34, and Scott v. Scott, 200 Ky. 153, it was held that the fact of marriage might be proven by parol testimony given by persons who had actual knowledge of the fact, and the same reason for the admission of such testimony to prove that fact would also prevail to establish the fact of birth, since there is no difference in principle between the two issues. We, therefore, conclude that the court properly found appellees to be nonresident alien dependents and entitled to recover the award provided by the statute in their favor.

Counsel for appellees strenuously insist that section 4903, supra, is unconstitutional as repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States, saying: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Other grounds are urged both in the pleading and brief of counsel as rendering the section unconstitutional, but all of which, except one, are referable to the amendment supra and need not be separately considered. The excepted one is that the section violates subsection 29 of section 59 of our Constitution because it is claimed that it is a special law enacted where a general one could be made applicable, and, therefore, repugnant to that subsection. But that contention is so glaringly erroneous as to require no discussion from us to point out its error, and we will content ourselves in disposing of that argument by simply saying that it is wholly without merit; which leaves for consideration only the question as to whether the attacked section of the Workmen's Compensation Act violates any of the provisions of section 1 of the Fourteenth Amendment supra of the Federal Constitution.

To begin with it readily will be seen that appellees are not citizens of the United States under that section of the amendment, since they were neither born here nor are they naturalized; neither are they subject to the jurisdiction of either the United States, or of this or any other state....