Advance-Rumley Co. v. Freestone

McMahan, C. J. Alonzo Freestone died October 3, 1927, as the result of an accident which arose out of and in the course of his employment by appellant. He left surviving him two sons, Amos, born in December, 1914, and Ernest, born in June, 1916. These sons, by their guardian, filed an application for compensation. Amos was awarded 300 weeks compensation at the rate of $12.07, per week, and Ernest was awarded compensation for the same period at the rate of sixty-one cents per week. The employer appealed. In December, 1916, Mary Freestone, the mother of these boys, was divorced from Alonzo Freestone by the LaPorte Circuit Court, and was awarded the custody, education and maintenance of Ernest. The father was ordered to pay $5 per month for his support. The father was given the care and custody of Amos until further order of the court. Mrs. Freestone married again, and, at the time of Alonzo Freestone’s death, she and Ernest lived with her second husband on a farm in Michigan. Amos lived with his father until June 23, 1927, when the LaPorte Circuit Court committed him to White’s Manual Labor Institute at Wabash, as a delinquent. Amos was there *655 after under the care and custody of that institution until after the father’s death. LaPorte county was charged with and paid for the care and support of Amos after he was sent to said institution. After the death of the father, the probation officer of LaPorte county, with the consent of the judge, gave a letter to an uncle of Amos, for his release, in order that he might attend the funeral. The uncle, acting on this letter, got the boy at the time of the funeral, and, on December 1, 1927, he was with the uncle. The order of the court committing Amos to the institution as a delinquent has never been revoked or modified, but is still in force. Appellant contends that neither of the boys is entitled to compensation. Section 38 of the Workmen’s Compensation Act, as amended in 1919, Acts 1919 p. 158, §9483 Burns 1926, provides: “The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: . . . (c) A child under the age of eighteen years upon the parent with whom he or she is living at the time of the death of such parent, (d) A child under eighteen years upon a parent with whom he or she may not be living at the time of the death of such parent, but, upon whom, at such time, the laws of the state impose the obligation to support such child. ... In all other cases, questions of total dependency shall be determined in accordance with the fact, as the fact may be at the time of the death, and the question of partial dependency shall be determined in like manner as of the date of the injury. If there is more than one person wholly dependent, the death benefit shall be divided equally among them, and persons partially dependent shall receive not [no] part thereof. “If there is no one wholly dependent and more than one person partially dependent, the death benefit shall *656 be divided among the partial dependents according to the relative extent of their dependency.” The Industrial Board did not find as a fact that either of the boys was or was not living with the father at the time of his death. It found that the custody, education and maintenance of Ernest was by the decree of divorce given to the mother, and that the father should pay her $5 a month for his support, that the father was given the care and custody of Amos, that the decree had never been changed, and that the boys were the only dependents of the father at the time of his death. Neither the finding nor the award mentions any fact relating to the commitment of Amos to the care and custody of an institution, where, at the time of the father’s death, he was being supported by the county. The undisputed evidence shows that Ernest had been living with his mother after the divorce, and that Amos lived with his father until he was committed to the institution, where he remained until after his father’s death. The board awarded each child compensation, one at the rate of sixty-one cents per week, and the other at the rate of $12.07 per week. The only reasonable inference to be drawn from this award is that the board did not find that either child was living with the father at the time of his death. If both had been living with the father at the time of his death, each, under the law, would have been conclusively presumed wholly dependent, and the compensation would, under the law, have been divided equally between them. If neither of them had been living with the father, but if, under the facts, the law imposed upon the father the obligation of supporting both of them, each of them, under the law, would have been wholly dependent, and the compensation should have been divided equally between them. If the board had found that Amos was living with his father, and that Ernest was living with and being par *657 tially supported by his mother, Amos would have been conclusively presumed to be wholly dependent, and entitled to the whole of the compensation awarded. If, on the other hand, neither was living with the father at the time of his death, but both were, under the law, entitled to be partially supported by the father, the amount 'of the compensation, under the law, should have been divided between them, “according to the relative extent of their dependency.” Since the board divided the compensation between them in unequal parts, the inference is that the board acted upon the theory that each was partially dependent, and that neither was totally dependent. Appellant contends that if the children were not living with the father, he was not under a legal duty to support either of them. . We will first consider this contention as it applies to Amos. Did the laws of this state impose an obligation on the father to support him while he was in the care and custody of an institution under a commitment issued by a court of general jurisdiction, when there was no order or judgment requiring the father to pay any part of the cost of his care, and when the county was liable for and was paying the whole cost of his support in such institution? The circuit court of LaPorte county is a court of general jurisdiction and has exclusive jurisdiction in all matters relating to children, including juvenile delinquents and in all cases wherein the custody and legal punishment of delinquents are in question. §1705 Bums 1926, Acts 1913 p. 852. Section 2 of this act provides, among other things that, whenever a complaint is pending against a boy, before he has completed his sixteenth year, for the commission of any offense not punishable with life imprisonment or death, the matter shall be referred to a probation officer for *658 investigation and report. If, after consultation with the probation officer, the cause is not dismissed, “a summons shall be issued by the clerk requiring the person or persons having custody or control of the child or with whom it may be, to appear with the child at a place and time which shall be stated in the summons; said summons shall also contain a notice requiring such person or persons to show cause, if any, why such child shall not be made a public ward or a ward of the court.” If such person is not the parent or guardian of the child, the parent or guardian shall be notified of the pendency of the cause. If, upon the trial, it shall appear that the child is guilty of the offense charged, the court may, among other things, order that such child be placed in the home where the county’s dependent children are kept or it may be committed to some institution devoted to the care of such children, for a definite or indefinite period, where it shall be kept at the per diem, fixed by law and to be paid by the county. In every case where the court commits a child to the care and custody of any institution other than a state institution, the court may make an order requiring the parent or guardian to show cause why he should not pay, in whole or in part, for the support of such child while it is in such institution, and the court may render judgment requiring the parent or guardian to pay such amount as is found just. If the health of the child requires it, the court may place such child in a public or private hospital or institution for treatment or special care. Did the act of the court in committing Amos to the institution, without an order or judgment requiring the father to pay any part of the cost of his care and support in such institution, relieve the father from his legal obligation, or was the obligation to support such child while in such institution imposed by the laws of the state in the absence of such an order or judgment? *659 At common law, the king, as parens patriae, had the supreme guardianship of all infants within, the realm, and the duty of protecting them from wrong; and it is the modern equivalent of this doctrine that the parent’s right is always subject to the control of the state and its courts, 20 R. C. L. 597; Jones v. Darnall (1885), 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545. The supremacy of the state over the rights and guardianship of the parents is best illustrated by cases like the one now under consideration, where the child is taken from the parent by administrative proceedings instituted by the state and committed to some institution. “The obligation to support and educate a child, and the right to the custody and services of such child, are reciprocal obligations and rights, unless otherwise fixed by judicial decree.” Leibold v. Leibold (1902), 158 Ind. 60, 62 N. E. 627. In Ramsey v. Ramsey (1889), 121 Ind. 215, 23 N. E. 69, 6 L. R. A. 682, a divorced wife sought to compel her former husband to support a child born to her after the divorce, and where no reference to the unborn child was made in the decree. In discussing the subject, the court said: “It is therefore the settled rule of law in England, as well as in this country, that, however derelict a father may have been in the discharge of his parental duty, he is under no legal obligation, in the absence of statutory enactment, to remunerate one who may have furnished necessaries, or afforded relief to his minor child, unless either an express promise to pay, or circumstances from which such a promise may be implied can be' shown.” On page 221, the court said: “The right to the custody and services of the child, and the obligation to support and educate, are reciprocal rights and obligations, unless otherwise fixed by judicial decree.” (Our italics.) To the same effect, see Husband v. Husband (1879), 67 Ind. 583, 33 Am. Rep. 107; Foss v. Hartwell (1897), 168 Mass. 66, *660 37 L. R. A. 589, 60 Am. St. 366; Wheeler v. State (1912), 51 Ind. App. 622, 100 N. E. 25; Simpson, Law of Infants (2nd ed.) 171; Tyler, Infancy and Coverture (2nd ed.) §§181, 185, 190. This court has also spoken on this subject. The most recent case is Western Indiana Gravel Co. v. Erwin, Gdn. (1925), 84 Ind. App. 26, 149 N. E. 185, a compensation case, where the court quoted extensively from Husband v. Husband, supra, and held that children whose, custody was awarded to the mother on divorce of the parents, and who lived with and were supported by the mother, without an order of court requiring the father to support them, were not dependents within the meaning of subdivision (d) of §9483, supra, so as to be entitled to compensation on the father’s injury and death. And in Stephens v. Stephens (1921), 76 Ind. App. 687, 132 N. E. 747, where the parents of the child were divorced, the mother having been given the custody of the child and a small judgment for alimony and for its support, the child was held not a dependent under the Workmen’s Compensation Act. See, also, Kramer v. Tone Bros. (1924), 198 Iowa 1140, 199 N. W. 985. Under the Workmen’s Compensation Act as originally enacted, Acts 1915 p. 392, §38, the fact that Amos was not living with his father at the time of the latter’s death would, in itself, have excluded him from the class of children conclusively presumed to be wholly dependant for support upon his father. The amendment under which he claims compensation, Acts 1919 p. 158, extends the presumption to certain children not living with the parent at the time of his death, but only to those “upon whom, at such time, the laws of the state impose the obligation to support.” It is not to be assumed that the Legislature, in using the quoted words, was creating a new and enlarged obligation on the part of the father to support his children, but was merely referring to and *661 embodying therein the existing law of this state, under which the obligation is largely dependent upon the right to custody. We cannot enlarge the scope of this amendment by reading into it language which would materially change the existing law, and extend the legal obligation of a father to support to a case like the present, where the custody of the child had been taken from the father and transferred to a custodial institution, without a decree of the court requiring him to pay anything towards its support. See Miller’s Case (1923), 244 Mass. 281, 138 N. E. 254. As was said in Creeley v. Creeley (1927), 258 Mass. 460, 155 N. E. 424, 52 A. L. R. 285: “At common law a father is entitled to the custody of his minor children and, if of sufficient ability, is bound to support them. . . . Accompanying this obligation to support is the right on the part of the father to the custody, society and services of the child. . . . If the father is deprived of the custody of his child by order of court, it is held in this Commonwealth that the common-law duty to support ceases and, apart from statute, his obligation in this respect is then to be determined by judicial decree.” “The right to recover compensation is the creature of the workmen’s compensation act.” Gillander’s Case (1922), 243 Mass. 5, 136 N. E. 646. And where, as in the instant case, the child is not living with the parent, it requires the establishment of the legal obligation to support. An insane wife of a workman, confined in an asylum and cared for at public expense is not a dependent entitled to compensation for his death under the Workmen’s Compensation Act. Roberts v. Whaley (1916), 192 Mich. 133, 158 N. W. 209, L. R. A. 1918A 189. In Rees v. Penrikyber Navigation, etc., Co. (1902), 1 K.B. (Eng.), 259, a pauper inmate of a workhouse, toward whose maintenance no contribution was in fact made by his *662 son, was held not to be as a matter of law in part dependent on the son’s earnings, within the meaning of the Workmen’s Compensation Act, notwithstanding the son’s indirect obligation under the poor law to contribute to his father’s maintenance. A widow, whose only son was killed in an, accident, was not entitled to compensation when a goodly portion of the time she had been in prison, and where, at the time of his death, she was in an inebriate reformatory. Trainer v. Robert Addie and Sons’, Collieries, Ltd. (1904), 42 Scot. L. R. 85. Appellee calls attention to Vigo Am. Clay Co. v. Kelley, Gdn. (1925), 82 Ind. App. 675, 147 N. E. 301, and contends that, under the rule there announced, Alonzo Freestone, at the time of his death was, under the laws of this state, obligated to support the son Amos. In the case cited, the father was a widower, his wife having predeceased him, leaving surviving her her husband and a child then only a few days old. After the death of the mother, the child was taken to the home of another, where she thereafter lived. The father had never, in any way, been relieved of his legal duty to support the child. That case was correctly decided, and an award of compensation in favor of the child sustained, but it is of no controlling influence in the instant case. If the court had modified the decree of divorce in so far as it related to the custody of Amos, and had placed him in the care and custody of his mother, without requiring the father to pay anything toward his support, instead of placing him in an institution, it is clear, under the authorities, that Amos would not, while in the custody of his mother, under such decree, have been dependent within the meaning of the Workmen’s Compensation Law. Why? Because the father, having been deprived of the custody of his child and of the right to his control and to his earnings, would *663 not, under the laws of this state, in the absence of a decree of the court, have been obligated to pay for his support. So, in the instant case, the father having been deprived of the custody of Amos without a judicial decree requiring him to contribute to his support, the laws of this state did not impose an obligation on the father to support such child. It was not necessary for the court to state in the decree depriving the father of the custody of his child and committing him to an institution that the father was relieved of his prior legal obligation to support such child. The legal effect of the decree depriving him of the custody of his child was to relieve him of his legal duty to support such child so long as the decree of the court remained in force. If the court had, by a decree, ordered the father to pay the whole of the cost of supporting the child while in the institution, the law would have imposed upon him the obligation to support such child. If such an order had been made, Amos would, under subdivision .(d) §9483 supra, have been conclusively presumed to have been wholly dependent upon his father for support and would have been entitled to the whole of the death benefit to the exclusion of his brother, Ernest, who was only a partial dependent. Any other holding would be inconsistent with the previous decisions of this court as well as of the Supreme Court. If Amos Freestone was a proper subject to be placed in an institution at the expense of the county, without any order being made that the father should pay any part of the cost of his support, and we must presume he was, the county was liable for his support while there, and no person was liable to the county for his support, while in such institution. If the father was able to pay for his support, in whole or in part, the court should have made an order to that effect. The failure of the court to make such an order is a judicial determination that the father was not required to pay any part of such sup *664 port. It was in effect an act of charity which the public was bound to bestow, and no authority is by law given to the county to sue for the cost of such support. See Board, etc., v. Hildebrand (1849), 1 Ind. 555; Board, etc., v. Schmode (1875), 51 Ind. 416. Spade v. State (1909), 44 Ind. App. 529, 89 N. E. 604, is not in point. There, the parents of a child, less than three years of age, had been divorced in November, 1908, the custody of the child given the mother, and the father ordered to pay her $1.25 a week for the child’s support. The father paid $12, and no more. The mother, with the knowledge of the father, abandoned the child and became an inmate in a house of prostitution. On March 9,1909, the child was adjudged a dependent and neglected child and made a ward of the board of county commissioners. The father, knowing the mother had abandoned the child, had failed and neglected to look after it, which he, under the divorce decree, was at least required to partially support, and had failed for two months to pay the $1.25 a week for its support. Two days after the child was made a public ward, the father was arrested on a charge of having contributed to the dependency and neglect of the child. The record in that case discloses that the mother had left the child in the possession of an elderly couple, who were unfit to care for it, and where it was kept in filth and squalor; that the father knew the facts and, at the time the child was made a public ward, he had not only failed to see that the child was kept in a decent place, but had also failed to make the weekly payments for its support. He was properly found guilty, not because he had neglected the child after it had been made a public ward, but because of his neglect prior to that time, and the statute under which he was prosecuted expressly gave the court power to suspend judgment on condition that the defendant should provide and care for the child in such manner as the court *665 should direct. §1701 Burns 1926, Acts 1907 p. 59, §4. As a matter of fact, the appellant, in that case, did not attack the authority of the court to suspend judgment on the named conditions. In Wheeler v. State (1912), 51 Ind. App. 622, 100 N. E. 25, a father had been convicted of failing to support his minor children. On appeal, the conviction was reversed, the court saying: “It is unquestionably the duty of a father to support his minor children, but in return for this he is entitled to their services and companionship.” Guthrie County v. Conrad (1907), 133 Iowa 171, 110 N. W. 454, was an action by the county against the father of a minor son to recover the cost of the son’s care in a hospital for the insane. It was said by the court that it was conceded there was no liability unless a certain section of the statute relating to the commitment to the hospital created a liability. The statute there involved expressly provided that the statute should not be construed to release the estates of persons committed “nor their relations from liability for their support,” and authorized the auditor, on behalf of the county, to make the collection from any person liable for their support. The court held that the statute unmistakenly fixed the liability of persons legally bound for the support of such persons and authorized a recovery. The award as to Amos must be and the same is reversed. The award in favor of Ernest is affirmed. Lockyear and Nichols, JJ., dissent.