Fields v. Hollowell & Hollowell

Annotate this Case

78 S.E.2d 740 (1953)

238 N.C. 614


No. 386.

Supreme Court of North Carolina.

November 25, 1953.

*742 Earlie C. Sanderson, Wallace, for plaintiff appellant, McMillan.

Butler & Butler, Clinton, for plaintiff appellee, Fields.

WINBORNE, Justice.

Is a woman who was purposely and knowingly living in unlawful cohabitation with an employee at the time of his death, a dependent of such employee within the meaning of the North Carolina Workmen's Compensation Act, Chapter 97 of General Statutes? The trial court was of opinion that she was such dependent, and so ruled and adjudged. This ruling is aptly challenged by this appeal.

As used in the North Carolina Workmen's Compensation Act, the term "death" as a basis for a right to compensation means only death resulting from an injury, that is, an injury by accident arising out of and in the course of the employment. G.S. § 97-2(f) and (j).

The term "compensation" means the money allowance payable to an employee or to his dependents as provided for in the Act. G.S. § 97-2(k).

Moreover, the Act provides that if death results proximately from such accident, the employer shall pay or cause to be paid to the dependents of the employee a weekly payment as specified. G.S. § 97-38.

*743 It is significant that the Act, in respect to dependents of an employee whose death results from an injury, as so defined, specifically defines who are meant by the terms, child, grandchild, brother, sister, parent, widow and widower. G.S. § 97-2, subsections (1), (m), (n), and (o), and who are next of kin, father, mother, widow, child, brother or sister, in the event the deceased employee leaves no dependents. G.S. § 97-40. The significance of these provisions is that these persons are only those to whom the deceased employee is under legal or moral obligation to support.

The Act also provides that "A widow, a widower, and/or a child shall be conclusively presumed to be wholly dependent for support upon the deceased employee. In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts as the facts may be at the time of the accident", and as such be entitled to receive the benefits for the full period specified. G.S. § 97-39.

The appellee, in brief filed in this Court, states that she "does not claim compensation as the common law wife of the deceased". Hence we are not here concerned with that subject. And so conceding the appellee necessarily does not claim that she is the widow of the deceased employee. But she contends that "the workman who voluntarily assumes the support of any person, who looks to and relies upon him for the necessities of life, has made of that person a dependent". Hence she contends that she comes within the purview of the term "in all other cases", appearing in the statute G.S. § 97-39. And apparently the trial court agreed with this position. But this Court does not so interpret the North Carolina Workmen's Compensation Act.

The term "in all other cases" in the connection in which it appears in the statute G.S. § 97-39, means in all cases other than those of widows, widowers, and children, claiming to be dependents of the deceased employee,dependency shall be determined in accordance with the facts as the facts may be at the time of the accident. Manifestly, a woman living in cohabitation with a man, to whom she is not married, is not within the purview of the term "in all other cases".

In this connection it is appropriate to note that in the case of Reeves v. Parker-Graham-Sexton, 199 N.C. 236, 154 S.E. 66, there is this headnote "The commonlaw wife of a deceased employee is not entitled to compensation under the provisions of the Workmen's Compensation Act." But a reading of the opinion, and of the record on appeal, discloses that while the Industrial Commission considered the question as to whether or not a woman living in fornication and adultery is entitled to compensation as a dependent, and ruled adversely to the claimant, the record shows that the claimant did not appeal therefrom. Hence what is said in the reported case in this respect is dictum.

Nevertheless, the opinion of the hearing commissioner, J. Dewey Dorsett, incorporated in Vol. 1 at page 277 of opinions in cases heard and determined by the North Carolina Industrial Commission, is appropriate to this appeal, and is worthy of citation. We quote in part as follows: "The following instances, involving the rights and obligations of husband and wife, demonstrate the utter absurdity of the suggestion that Frances Wilson was the lawful wife of George Wilson, for if George Wilson were alive today and living with Frances Wilson, under the admitted circumstances in this case:

"1. Frances Wilson could not maintain an action for divorce against him, for such an action presupposes a valid marriage * * *

"2. She could not maintain a proceeding for alimony against him, because that remedy implies a lawful marriage. * * *

"3. She could be compelled to testify against him in a criminal action, for before a wife will be excused from giving *744 evidence against her husband, * * * it must be shown that she was lawfully married to him. * * *

"4. If, after having lived with Frances Wilson, under the admitted circumstances in this case, George Wilson had subsequently married another woman, he could not have been convicted of the crime of bigamy, because one of the essentials of that crime would be lacking, to wit, a prior legal marriage. * * *

"5. George Wilson and Frances Wilson were subject to indictment, and under the admitted facts in this case, would have been convicted, for fornication and adultery every day they lived together. * * *

"6. George Wilson, if he had abandoned and failed to support Frances Wilson, could not have been prosecuted, * * * because * * * abandonment by a husband presupposing a valid marriage, * * *

"7. Frances Wilson, upon the death of George Wilson, would not be entitled to a year's support, * * * `The widow is invariably entitled to the benefit of the statutory provision for support and maintenance, but in order to have the benefit of such a statute, she must have been lawfully married to decedent'.

"This is the first time that the North Carolina Industrial Commission has been called upon to determine the status of parties to a marriage not performed in accordance with the plainly expressed provisions of our statutes. C.S. § 2493. (Now G.S. § 51-1) The decisions of this Commission in the instant case will necessarily be one of far reaching effect, and to sustain the so-called marriage in this case would not only be in conflict with the consistent holdings of our Supreme Court, but it would also be alien to the customs and ideas of our people, and would shock their sense of propriety and decency. Grave considerations of public policy forbid it. That it would tend to impair the public estimate of the sanctity of the marriage relation, there can be no doubt. It would obscure the certainty of the rights of dependents designated in our compensation law. It would open the door to false pretenses of marriage, and would invite and encourage impostors to contest the legitimate claims of helpless dependents, and finally, it would place ordained matrimony on the same level with common lasciviousness. We believe that the North Carolina Workmen's Compensation Act should be interpreted and construed as any other public statute, and the assumption that the General Assembly, in the enactment of this law, intended to reward parties to a relationship deliberately entered into in open defiance of the penal laws of our State and against public morals, is a violation of the most fundamental canons of statutory construction."

And the majority opinion of the present Industrial Commission follows the same line of reasoning in making decision in this case. It is said by them that to honor such a claim "would create a legal right out of an illegal relationship". It could be added that such a claim is conceived in sin, and shapened in iniquity.

To ascribe to the General Assembly of North Carolina an intention by implication to make of that class a compensable dependency is not accordant with the sound public policy established by the North Carolina Workmen's Compensation Act.

Hence, the judgment from which this appeal is taken will be, and it is hereby reversed, and the cause remanded to the end that judgment be rendered in accordance with the award of the majority of the Industrial Commission.