W. R. Fairchild Const. Co. v. Owens

• Decision Date: 09 June 1969
• Docket Number: No. 45361,45361
• Citation: 224 So.2d 571
• Parties: W. R. FAIRCHILD CONSTRUCTION CO., Ltd., J. W. Snowden Construction Company, Employer, and Western Fire Insurance Company, Carrier v. Mrs. Edna OWENS, mother, and Elisha Pearline Owens Bryant, daughter, Dependents of John Clifton Owens, Deceased.
• Court: Mississippi Supreme Court

Page 571

224 So.2d 571

W. R. FAIRCHILD CONSTRUCTION CO., Ltd., J. W. Snowden

Construction Company, Employer, and Western Fire

Insurance Company, Carrier v. Mrs. Edna OWENS, mother, and Elisha Pearline Owens Bryant, daughter, Dependents of John Clifton Owens, Deceased.

No. 45361.

Supreme Court of Mississippi.

June 9, 1969.

Rehearing Denied July 3, 1969.

Dorrance Aultman, Hattiesburg, for appellants.

Jack H. Pittman, Homer W. Pittman, Hattiesburg, for appellees.

INZER, Justice:

This is an appeal by employer-carrier from a judgment of the Circuit Court of Hancock County affirming an order of the Workmen's Compensation Commission directing appellants to pay death benefits to appellees as dependants of John Clifton Owens, deceased.

John Clifton Owens died on November 21, 1967, as a result of an accidental injury which arose out of and in the course of his employment for W. R. Fairchild Construction Co., Ltd. and J. W. Snowden Construction Company. Claims for death benefits were filed by his mother, father and two sisters. A separate claim was filed on behalf of Elisha Pearline Owens Bryant, as a dependent child.

The full commission affirmed an order of the attorney referee ordering the payment of benefits to Mrs. Edna Owens, mother of the deceased, as a partial dependent and a majority of the commission affirmed the order of the attorney referee ordering payments of death benefits to Elisha Bryant as a dependent child. Upon appeal to the circuit court, the court entered a judgment affirming the order of the commission. Hence this appeal.

It is first contended that the circuit court was in error in affirming the order of the commission as to Elisha Bryant as a dependent child. It is urged that Elisha Bryant was not a dependent child of the deceased due to her adoption by Armon B. Bryant prior to the injury and death of her natural father. The proof shows that Elisha was born on February 9, 1962, to the marriage of John Owens and Betty Jean Owens. John and Betty Jean were divorced by a decree of the chancery court of Forrest County and by the terms of the decree the mother was awarded the custody of the child and the father was ordered to pay $25 per month for the support of the child. Betty Jean then married Armon B. Bryant and in February 1964 they filed a petition in the chancery court of Forrest County seeking the adoption of Elisha Pearline Owens. John C. Owens, the natural father, joined in this petition individually and as next friend of his child consenting to the adoption. Pursuant to the petition a final decree of adoption was rendered whereby Elisha Pearline Owens was adopted by Armon B. Bryant. No question is raised as to the legality of the adoption and it appears to be in conformity with the statute. By the terms of this decree the name of the child was changed from Elisha Pearline Owens to Elisha Pearline Bryant and a birth certificate was issued showing that Elisha Pearline Bryant was the daughter of Armon B Bryant and Betty Jean Bryant. The decree bestowed upon Elisha all rights of inheritance according to Section 1269-06, Mississippi Code 1942 Annotated (Supp.1968). The decree vested the adopting parents with all rights, powers and duties and obligations to the child as if born to their marriage. The decree also terminated all parental rights of John Clifton Owens and also terminated any right he had to inherit from the child.

From the date of the adoption the child resided with her mother and adoptive father at her grandmother's home. There was conflicting evidence from which the commission could find that the natural father continued to pay $25 per month for the support of the child.

Appellant contends that when Elisha was adopted the conclusive presumption that she was a dependent of her natural father was terminated and from that time forward she was conclusively presumed to be a dependent of her adoptive father. This contention raises a question of first impression in this Court. An examination of the decisions of courts of other jurisdictions reveal that some of the courts hold that the adoption terminates the conclusive presumption of dependency as to the natural parents, while others hold that the conclusive presumption continues in spite of the adoption. A study of these decisions reveals that each of the courts reached a conclusion based upon its interpretation of the statutes of the particular state, and for that reason these decisions are not too helpful to us in reaching a decision in this case. We must construe our statutes to determine the course that we will follow.

Section 6998-13, Mississippi Code 1942 Annotated (Supp.1968) provides for death benefits. Section 6998-13(g) is as follows:

All questions of dependency shall be determined as of the time of the injury. A surviving wife, child, or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant.

Section 6998-02(12) states as follows:

'Child' shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. 'Grandchild' means a child as above defined of a child as above defined. 'Brother' and 'sister' include stepbrothers and stepsisters, half brothers and half sisters and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. 'Child', 'grandchild', 'brother', and 'sister' include only persons who are under eighteen (18) years of age, and also persons who, though eighteen (18) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability. (Emphasis added).

Paragraph (18) of this Section provides as follows:

It is expressly provided, agreed, and understood in determining beneficiaries under this section that a widow, widower suffering a mental or physical handicap, and children under the age of eighteen (18) years are presumed to be dependent.

After the enactment of the Workmen's Compensation Act in 1948 the legislature completely revamped the adoption laws of this state by the enactment of Chapter 34 of the Laws of Extraordinary Session of 1955 which appears as Sections 1269-02 through 1269-12 of our present Code.

Section 1269-06 provides what the final decree shall contain and its effect and the pertinent part of this statute states:

The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child, and its effect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of section 1453 of the Code of 1942; provided, however, that inheritance by or from the adopted child shall be governed by subsection (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this act shall restrict the right of any person to dispose of property under a last will and testament.

A certified copy of the final decree shall be furnished to the bureau of vital statistics, together with a certificate signed by the clerk giving the true or original name and the place and date of birth of the child; the said bureau shall prepare a revised birth certificate which shall contain the original date of birth, with the place of birth being shown as the residence of the adoptive parents at the time the child was born, but with the names of the adopting parents and the new name of the child. The fact that a revised birth certificate is issued shall be indicated only by code numbers or some letter inconspicuously placed on the face of the certificate. The word 'revised' shall not appear thereon. The original birth certificate shall be removed and placed, with the certified copy of the decree of adoption and the certificate, in a safety locked drawer or vault and the same shall not be public records and shall not be divulged except upon the order of the court rendering the said final decree, and fro all purposes the revised certificate shall be and become the birth certificate of the child. Provided, that the bureau of vital statistics of the State of Mississippi shall be required to prepare and register revised certificates only for births which occurred in the State of Mississippi as shown either by the court decree or by the original birth record on file in the bureau; but if the birth occurred in some other state, then the director of the bureau of vital statistics of the State of Mississippi shall be required to furnish to the attorney or other person representing the adopted child, the...