Snook v. Herrmann

• Decision Date: 05 September 1968
• Docket Number: No. 53028,53028
• Citation: 161 N.W.2d 185
• Parties: Karen Gay SNOOK, Appellee, v. W. B. HERRMANN, d/b/a Herrmann Gardens, Employer and Auto-Owners (Mutual) Insurance Company, Insurance Carrier, Appellants.
• Court: Iowa Supreme Court

Page 185

161 N.W.2d 185

Karen Gay SNOOK, Appellee, v. W. B. HERRMANN, d/b/a Herrmann Gardens, Employer and Auto-Owners (Mutual) Insurance Company, Insurance Carrier, Appellants.

No. 53028.

Supreme Court of Iowa.

Sept. 5, 1968.

Davis, Huebner, Johnson & Burt, Des Moines, for appellants.

Dull & Keith, Ottumwa, for appellee.

MOORE, Justice.

This is an appeal by an employer and insurance carrier from trial court's judgment sustaining industrial commissioner's allowance of workmen's compensation benefits to the natural born child of an employee electrocuted while trimming trees. The child, plaintiff-appellee, had been adopted by her maternal grandparents approximately six months before her father's death.

Appellants assert the trial court erred in holding (1) a natural child of a deceased employee, adopted by and living with adoptive parents prior to death of the natural parent, was conclusively presumed to be wholly dependent on the deceased employee under Code section 85.42 and (2) that the deceased employee was not engaged in any agricultural pursuit as exempted from coverage under Code section 85.1(3).

Walter Raymond Snook and the present Bette Eslinger Starks were married in 1956. To this marriage a daughter, Karen Gay, was born on December 21, 1956. Shortly after the marriage Snook was imprisoned at the Anamosa reformatory for robbery. During his incarceration Bette instituted a divorce proceeding which culminated in a divorce decree on October 1, 1958. Bette was granted custody of Karen and Snook was ordered to pay $15.00 per week child support.

Snook was released in October, 1958 but was returned to the reformatory in March, 1960 where he was incarcerated until September 1962. His child support payments were sporadic.

Karen resided at all times, exclusive of a six months period, with her maternal grandparents, Mr. and Mrs. Howard Rodney Eslinger, who fed, clothed and otherwise provided support for her.

On January 18, 1963 Mr. and Mrs. Eslinger filed a petition for adoption which was granted by the court on February 1, 1963 under which Karen's name was changed to Karen Gay Eslinger. The natural mother, Bette, consented to the adoption. The record is unclear as to whether Snook was again in prison during the adoption proceedings. He did not consent to the adoption.

On July 19, 1963 Snook came in contact with an electric line resulting in his electrocution. His injury and death arose out of and in the course of his employment as a tree trimmer for Herrmann Gardens, defendant-appellant herein.

Karen Gay, as minor claimant, filed an application on March 31, 1964 with the industrial commissioner seeking death benefits pursuant to Code section 85.42(2), naming Herrmann Gardens and its insurance carrier, Auto-Owners (Mutual) Insurance Company, defendants.

Following hearing the deputy industrial commissioner held defendants liable to plaintiff-claimant for the statutory death benefits. He held Karen Gay to be conclusively dependent upon her natural father within the meaning of section 85.42(2), Code, 1962 and found Snook not to be engaged in an agricultural pursuit at the time of his death so as to be excluded from coverage under section 85.1(3). On review the industrial commissioner made like findings and affirmed the award. Defendants' appeal to the district court resulted in an affirmance of the commissioner's award.

I. Appellants' first assigned error presents a question of first impression before this court and requires interpretation of Code section 85.42 which provides:

'Conclusively presumed dependent. The following shall be conclusively presumed to be wholly dependent upon the deceased employee:

'1. The surviving spouse, (with exceptions here not applicable)

'2. A child or children under sixteen years of age, and over said age if physically or mentally incapacitated from earning, whether actually dependent for support or not upon the parent at the time of his or her death. An adopted child or children shall be regarded the same as issue of the body. A child or children, as used herein, shall also include any child or children conceived but not born at the time of the employee's injury, and any compensation payable on account of any such child or children shall be paid from the date of their birth. A stepchild or stepchildren shall be regarded the same as issue of the body only when the stepparent has actually provided the principal support for such child or children.'

Appellants contend determination of persons conclusively presumed dependent under subsection 2 was a question of law for the trial court and should be so treated on this appeal. We agree but are not persuaded the trial court's holding on this law issue was erroneous. Of course interpretation of the statute is a matter of law for the court. We have also repeatedly held where the facts are not in dispute and different inferences could not reasonably be drawn therefrom it becomes a question of law and the court is not bound by the commissioner's findings and conclusions. Bodish v. Fischer, Inc., 257 Iowa 516, 518, 519, 133 N.W.2d 867, and citations. The fact the deceased employee was the natural father of appellee is undisputed.

Courts of several jurisdictions have considered and construed similar statutory provisions. As we shall point out infra the holding of each except Georgia support the trial court's conclusion regarding section 85.42(2). Several are discussed in the case note on Patton v. Shamburger, Tex.Civ.App.1967. 413 S.W.2d 155 in 17 Drake L.Rev. 275.

Appellants rely heavily on New Amsterdam Casualty Co. v. Freeland, 216 Ga. 491, 117 S.E.2d 538, where the Georgia Supreme Court was confronted with an almost identical question as presented here. The deceased employee (natural father) and his wife were divorced and the children had been adopted prior to his death by another who wholly supported them. The natural father was killed in the course of his employment.

The pertinent provision of the Georgia statute which the court was called upon to construe provided in part: 'The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: * * * (c) A boy under the age of 18, or a girl under the age of 18, upon a parent. * * *'

The same statute, section 114--414 Georgia Code Annotated, provided the terms 'boy', 'girl', or 'child' included stepchildren, legally adopted children and the term 'parent' included stepparents and parents by adoption.

In reversing the trial court and court of appeals the Georgia Supreme Court cited the statutory adoption provision which divested the natural parents of all legal rights or obligations to the child upon entry of a decree of adoption and applied its rules of statutory construction to avoid what it considered an absurd and unjust result. The Georgia court apparently was motivated by an aversion to the possibility of double coverage which it was unwilling to attribute to the legislature.

At page 541 of 117 S.E.2d, the Georgia court says: 'Where the intention of the legislature is so inadequately or vaguely expressed that the court must resort to construction, it is proper to consider the result and consequences. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.'

On the same page the court poses the hypothetical example of the simultaneous death of the natural and adoptive parents which it says would result in the 'unreasonable and inequitable' consequence of double recovery under claimant's interpretation of the statute.

Subsequent cases following the holding in New Amsterdam are Alexander v. Employers Mutual Liability Ins. Co., 102 Ga.App. 750, 118 S.E.2d 215; United States Fidelity & Guaranty Co. v. Dunbar, 112 Ga.App. 102, 143 S.E.2d 663.

Considering the particular wording of our statute, section 85.42(2), and utilizing what we find to be the applicable rules of construction thereof we are unable to reach the same conclusion as that in the New Amsterdam case.

In construing statutes we search for the legislative intent as shown by what the legislature said, rather than what it should or might have said. Citation of authority for this general rule is unnecessary. See Rule 344(f), par. 13, Iowa Rules of Civil Procedure.

Concerning the workman's compensation law in Roe v. Roe, 259 Iowa 1229, 1237, 146 N.W.2d 236, 240, we say: 'We must take the statute according to what it clearly provides and not what might have been said by the legislature.'

It must be noted also that we have repeatedly held the workmen's compensation law, being a remedial statute, is to be liberally construed in favor of the employee. Roe v. Roe, supra; Crees v. Sheldahl Telephone Co., 258 Iowa 292, 296, 139 N.W.2d 190, 193; Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 459, 127 N.W.2d 636, 639, and citations. In the latter case we applied this rule where the surviving spouse sought and was given workman's compensation benefits.

The trial court's findings and conclusions include: 'The plain wording of Section 85.42(2), Code, 1962, eliminating a parent's support of a child under 16 years of age as a condition of dependency, the provisions of Chapter 600, Code, 1962, providing for annulment of an adoption within five years for mental illness of the foster child, the position taken by the Supreme Court of Iowa in Day v. Town Club, 241 Iowa 1264, 45 N.W.2d 222, and the legislature's inaction with respect to the exclusion of adopted children after that opinion, all support the Commissioner's conclusion.' We agree.

The commissioner cited and relied on our holding in Day v. Town Club where we allowed a minor child to recover workmen's compensation benefits for her natural father's death although her parents were divorced and she was living in the home of her stepfather....