Portin v. Portin

• Decision Date: 05 May 1924
• Citation: 261 S.W. 362
• Parties: PORTIN v. PORTIN. SAME v. FOSTER-CREIGHTON CO.
• Court: Tennessee Supreme Court

Page 362

261 S.W. 362

PORTIN v.PORTIN.

SAME v.FOSTER-CREIGHTON CO.

Supreme Court of Tennessee.

May 5, 1924.

Appeal from Chancery Court, Davidson County; John Aust, Chancellor.

Suit by William Peter Portin, by next friend, against Mercy Annie Portin, and by Mercy Annie Portin against the Foster-Creighton Company.From a decree, an appeal is taken.Reversed and remanded.

Jos. H. Acklen and Jno.T. Allen, both of Nashville, for Portin.

Avery Handley, of Nashville, opposed.

GREEN, C. J.

The only question involved upon the appeal in these causes is whether the illegitimate child of a deceased employee, said child having been supported by the employee, is a dependent and entitled to compensation under the Workmen's Compensation Act, chapter 123 of the Acts of 1919.

The case was submitted upon a stipulation of facts from which we quote as follows:

"It is agreed by counsel, that the record in the above cause establishes the following facts: (1) That Mercy Annie Lane, widow of Isaac Lane, was married to H. H. Comstock in Nashville, by Judge Litton Hickman, on December 2, 1918.(2) That Comstock and wife went to Norfolk, Virginia, in 1919, and that his wife left him there, and went to Chattanooga, where she met Porter T. Portin.(3) That Mercy Annie Comstock and H. H. Comstock were never divorced.(4) That Mercy Annie Comstock and Porter T. Portin were married in Rossville, Georgia, on October 4, 1919.(5) That William Porter Portin, a child now about two years was the result of this marriage.(6) That Portin and wife went to Birmingham, and then came to Nashville about September 20, 1921, where they resided until about June 1, 1922, when she left him, leaving the child in his charge.(7) That on August 2, 1922, Mercy Annie Portin filed in the Second Circuit Court of Davidson County.Tennessee, her divorce against Porter T. Portin, and asked for no alimony.That an answer was prepared to said bill, but Porter T. Portin was killed before it was filed.(8) That Porter T. Portin was employed by the Foster-Creighton Company, and while working for said firm, on the excavation for the Caldwell Building, Union and Fourth avenue, Nashville, was on August 23, 1923, killed by the fall of a derrick, while at his post of duty.(9) That after the filing of the bills and answers in these causes, it was ascertained that H. H. Comstock is living in Arizona, and his deposition has been taken and filed.(10) That it is admitted that Mercy Annie Comstock and Porter T. Portin were not legally married, but it is not charged by complainant that Mercy Annie knew at the time of her marriage to Porter T. Portin, that her husband, H. H. Comstock, was still alive.She said she believed him dead."

It otherwise appears in the record that the deceased employee prior to his death supported the little boy, paying for his board and care at the home of a family in Nashville.

The chancellor was of opinion that being an illegitimate child, the boy was not entitled to any benefits under the Workmen's Compensation Law.

Although the chancellor has supported his decree by a well-reasoned opinion, and a like conclusion has been reached by the courts of several other states, construing different compensation statutes, we are of a contrary opinion, and have heretofore so intimated in the case of Bohlen-Huse Coal & Ice Company v. McDaniel(Tenn.)257 S. W. 848, opinion filed January 21, 1924.

The material sections of our Compensation Act are as follows:

"Sec. 30.Be it further enacted, that for the purposes of this act, the following described persons shall be conclusively presumed to be wholly dependent:

"(1) A wife, unless it be shown that she was voluntarily living apart from her husband at the time of his injury and minor children under the age of sixteen years.

"(2) Children between sixteen and eighteen years of age, or those over eighteen, if physically or mentally incapacitated from earning, shall, prima facie, be considered dependent.

"(3) Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law, and father-in-law who were wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his actual dependents, and payment of compensation shall be made to them in the order named.

"(3a) Any member of a class named in subdivision (3) who regularly derived part of his support from the wages of the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his partial dependent, and payment of compensation shall be made to such dependents in the order named."

Consideration of the foregoing shows that the statute undertook to provide for three classes of children.Subsection 1 provides for minor children under the age of 16 years.Subsection 2 provides for children between 16 and 18 years of age and those over 18 physically or mentally incapacitated from earning a living.Subsection 3 provides for children "who were wholly supported by the deceased workman at the time of his death and for a reasonable...