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Lawskills.com Georgia Caselaw
NEW AMSTERDAM CASUALTY COMPANY et al. v. FREELAND, Guardian.
38135.
Workmen's compensation. Telfair Superior Court. Before Judge Whaley. November 3, 1959.
NICHOLS, Judge.
Where an employee is killed as the result of a compensable accident, as defined by the Workmen's Compensation Act, leaving no widow but leaving children under 18 years of age who have been previously adopted by the second husband of the employee's ex-wife, such children are entitled to compensation under Code 114-414 (c).
After a claim was filed with the State Board of Workmen's Compensation in which compensation was sought for two children of Paul Pettyjohn, deceased, a stipulation of fact was entered into between the parties which among other things, stipulated that the employee Paul Pettyjohn was killed as the result of an accident arising out of and in the course of his employment, that the two children for whom compensation was sought were the children of the deceased, that such children were born on November 14, 1950, and May 2, 1953, that after such children were born the deceased and the mother of the children were divorced, that the children's mother remarried, that the children were legally adopted by their mother's second husband, and that after the divorce of the children's parents the deceased contributed nothing toward their support. The deputy director awarded compensation, as did the full board on appeal. Thereafter, the insurer and employer appealed to the Superior Court of Telfair County and the award of the full board was affirmed, and it is to this judgment that the employer and insurer now except.
The sole question presented by the appeal is whether or not, under the Workmen's Compensation Act, the natural children of an employee, who has been killed as the result of an injury arising out of and in the course of his employment (where such children are otherwise entitled to compensation as the result of such death), are entitled to compensation where prior to the employee's death such children have been legally adopted by a third person.
In Sears v. Minchew, 212 Ga. 417 (2) (93 S. E. 2d 746), it was held that the adoption laws of Georgia do not divest the right of a child to inherit from its natural father where such child has been legally adopted by a third person before the death of the father. In Travelers Ins. Co. v. Williamson, 35 Ga. App. 214 (132 S. E. 265), which involved a situation where the natural father was killed in a compensable accident after he and the children's mother had been divorced (the mother having remarried), and such children's support was supplied in part by the natural father and in part by the stepfather, it was held that the children were entitled to compensation under the Workmen's Compensation Act. In Macon, Dublin, &c. R. Co. v. Porter, 195 Ga. 40 (22 S. E. 2d 818), it was held that a child could sue for the negligent homicide of his natural father under Code 105-1302 although such child had been adopted by and aunt and that in such cases no dependency is required to be shown. See also Peeler v. Central of Georgia Ry. Co., 163 Ga. 784 (137 S. E. 24).
Under Code 105-1302 an adopted child may sue for the full value of the life of his natural father; however, such child as next of kin cannot maintain an action against his father's employer for the homicide of his father where such homicide arose out of and in the course of the employment of the father where the employer and the employee are subject to the Workmen's Compensation Act. Code 114-103; Wall v. J. W. Starr & Sons Lumber Co., 68 Ga. App. 552 (23 S. E. 2d 452), and citations.
Therefore, since Code 114-414 (c) provides that the children of the deceased employee who are under 18 years of age are conclusively presumed to be dependent on such deceased employee, and since Code 114-103, supra, prohibits such child or children from bringing an action for common-law negligence against the employer, which right the child or children would otherwise have, the judgment of the Superior Court of Telfair County in the present case affirming the award of compensation by the full board to the children of the deceased employee, who was admittedly killed as the result of compensable accident, was not error for any reason assigned.
BELL, Judge, concurring specially.
While the case of Macon, Dublin &c. R. Co. v. Porter, 195 Ga. 40 (22 S. E. 2d 818) leaves in doubt the decision as to whether a child legally adopted by both an adopting mother and father would be entitled to recover for the homicide of the natural fathers under Code 105-1302, this doubt in my opinion has been clearly resolved in the later case of Sears v. Minchew, 212 Ga. 417 (93 S. E. 2d 746), by Chief Justice Duckworth, who in considering the 1949 amendment to the adoption law (Ga. L. 1949, p. 1157), construed the amendment as not being intended to take from the adopted child any rights it already had. In this case Chief Justice Duckworth said: "The language of the Georgia statute, which must be studied for an answer to the other question as to whether an adopted child is divested of his right to inherit from its natural parents, is: 'the parents of the child shall be divested of all legal rights or obligations from' them to the child or from the child to them . . .' The language is plain and unambiguous whether or not it expresses the legislative intent at the time this legislation was passed. The subject of the sentence is the word 'parents,' and it refers to the divesting of their legal rights or obligations to the child or from the child. It does not refer to the rights of the child to divest it of anything whatsoever, and the adoption statute being in derogation of the common law, such would be necessary to take from the child any rights of inheritance under the laws of descent and distribution [citing cases].
"As stated in the Lefkoff case [189 Ga. 554, 6 S. E. 2d 687, 133 A. L. R. 738] statutes are not understood to effect a change in the common law beyond that which is clearly indicated by express terms or by necessary implication. There was no express intent to amend the statute of descent and distribution here, and there is certainly no implied amendment taking from children their rights to inherit from the blood."
While this opinion specifically was in reference to the right of a child to inherit from its natural parents under the common-law rights of descent and distribution as codified in the Georgia law, the case clearly enunciated the principle applicable here that the adoption of the amendment of 1949 did not intend to take away from the adoptive child any rights it already had.
Obviously, when this adopted child was born, it possessed the rights granted to it as a child by Code 105-1302. Applying Chief Justice Duckworth's opinion as to this right, the amendment of 1949 did not take this right away from him. Accordingly, the child was authorized to recover for the wrongful death of its father under Code 105-1302. By the same analogy the conclusive presumption authorized for the child under Code 114-414 became available to the child at its birth and would not be taken away from him by the amendment of 1949 to the adoption statutes.
Accordingly, as Judge Nichols points out in the majority opinion, since Code 114-103 prohibits a child or children from bringing an action for common-law negligence against the employer, which right the child or children would otherwise have, it would have the right to be awarded compensation under the Workmen's Compensation Act where thee natural father was admittedly killed as a result of a compensable accident.
FELTON, Chief Judge, dissenting.
Code 114-414 provides that "child" shall include legally adopted children and that "parent" shall include parents by adoption. The compensation law is based on dependency under legal obligation where presumptive dependency is not provided. Under the adoption law (Code, Ann., 74-414), an adopted child bears the relation of child to the adopting parent and all legal obligations between the natural parents and the adopted children are destroyed. I cannot believe that under the provisions of the law the General Assembly could have intended that an adopted child would be conclusively presumed to be dependent on his natural father and his adoptive father. The very opposite seems to me to be true. Macon, Dublin &c. R. Co. v. Porter, 195 Ga. 40, supra, seems to me to clearly indicate that if in that case there had been an adoptive father the ruling would have been different. This is certainly true in the plain terms of the concurring opinion by Justices Reid and Jenkins. I think the judgment should be reversed.
Judge Frankum concurs in this dissent.
William P. Whelchel, contra.
Smith, Oliver, Johnson & Bostick, R. Wilson Smith, Jr., for plaintiffs in error.
DECIDED MAY 16, 1960 -- REHEARING DENIED JUNE 6, 1960.
Saturday May 23 00:17 EDT


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