Green v. Burch

Burch, J.

(dissenting): With regret, I realize that I cannot agree with what I have written in behalf of the majority of the members of the court. I am convinced that the Kansas legislature was always fully cognizant .of a class of children designated as “illegitimate” and saw fit not to include them as dependents. How can any other conclusion be reached when the same legislature was so thoughtful that it specifically considered as possible dependents not only children, grandchildren, step-children, step-grandchildren and adopted children, but also legal wives and husbands, brothers, sisters, step-brothers, step-sisters and grandparents? There is little, if any, more reason justifying the allowance of compensation to illegitimate children than there is to illegitimate wives. The danger inherent in allowing illegitimate wives to claim compensation is also incident to permitting such wives to bring forth claims for compensation in behalf of children whom they may claim after a workman’s death to be the progeny of the deceased workman. Moreover, on meditation, I become more and more certain that the legislature, when it reenacted the act in 1927, intended that the word “legal” should modify and limit “children” as well as “widow or husband,” since the semicolon in the statute appears subsequent to the term “children.” In addition, I am of the opinion that if the legislature intended to include illegitimate children under the statute, it would, in keeping within its demonstrated precaution, at least, have limited the class — as in most other acts — to illegitimates who were acknowledged, recognized or legitimatized before the injury. (See Lopo v. Union Pacific Coal Co., 53 Wyo. 143 , 79 P. 2d 465 .) The construction of the statute reached by the majority of the court would eliminate such safeguards, were it not for the facts in this particular case, and allow illegitimate children to recover workmen’s compensation benefits without .qualification while all other illegitimate children in the state cannot recover as heirs of their fathers unless their fathers have notoriously or in writing recognized the paternity of the children. (See G. S. 1945 Supp., 59-501, and G. S. 1935, 22-122.) The legislature never intended such a distinction.