dissenting. I concur in all of the majority opinion except that part relating to the cross-appeal on Henry Lee Dunn, Jr. I must take exception to that portion and to the approach taken in the concurring opinion. First, I should say that even though I would probably agree philosophically with the approach taken by my brother Jones in his concurring opinion, it seems to me to have been foreclosed by the interpretation given Ark. Stat. Ann. §§ 81-1302 (j), 81-1315 (c) and 81-1315 (d) (Repl. 1960) in Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803, where we said:
*** This section of the Act [81-1302 (j)] is fairly open to the construction that unmarried children are entitled to compensation although the deceased parent was not supporting them at the time of his death, but married children are not entitled to compensation unless they were wholly dependent on deceased.
*****
It would be possible to construe this provision of the Act [81-1315 (c)] as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children. ***
In Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120, in construing the 1940 Workmen’s Compensation Law it was held that the child of a deceased natural parent was entitled to compensation, although he had not been dependent on the natural parent — in fact, the child had been adopted by another person, who was supporting him. Appellant contends that the 1948 Workmen’s Compensation Act amended the 1940 Act to the extent that the child of a deceased parent cannot recover when the parent at the time of his death was not contributing to the support of the child. True, the Act could be so construed, but such a construction would leave unsolved the meaning of Ark. Stat. § 81-1302 (j), which says that a married child does not come within the definition of “child” unless wholly dependent. Nor do we think that § 81-1315 (c), dealing with partial dependency, precludes recovery by the wife and children who are dependents within the usual meaning of the word. There is no contention in this case that the mother or children are capable of taking care of themselves. For all the record shows, they perhaps are the objects of charity.
Then we followed Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120, where we held that a child was a dependent of his natural father, even though he had been adopted by another, regardless of the fact that there was no actual dependency of the child upon his natural father, before the change in statute in 1949 mandated that result. In that case, we said:
Thus, there is entirely absent from the 1939 Workmen’s Compensation Law, any statement either (a) that the act of adoption takes a child out of the terminology of “child” of the natural father, or (b) that actual dependency must be proved as regards a natural child under 18 years of age. in fact, the Act looks entirely to the opposite conclusion: because in Sec. 81-1302 (j) [Ark. Stat. Ann. 1947], a stepchild or an acknowledged illegitimate child must be shown to be dependent on the deceased; and a married child is not included unless wholly dependent on the deceased. The requirement of proof of dependency for stepchildren, acknowledged illegitimate children and married children, indicates rather clearly that dependency does not have to be proved as regards a natural child under 18 years of age. Likewise, under § 81-1315 (d) [Ark. Stat. Ann. 1947], as above quoted, it is stated that the dependence of a child will terminate at 18 except for a physically or mentally incapacitated child. The statement—that a physically or mentally incapacitated child may be found to be dependent after 18—indicates that no proof of dependence need be made by any natural child who is under 18 years of age.
Changes in the law since this case was decided have not made its precepts less applicable. There is no longer a requirement that a stepchild or an acknowledged illegitimate child be wholly dependent upon the deceased, as there was in the 1939 law. Cf. Ark. Stat. Ann. § 81-1302 (j) (1947) and Ark. Stat. Ann. § 81-1302 (j) (Repl. 1960). Children over 18 years of age are still not dependents unless physically or mentally handicapped. See Ark. Stat. Ann. §§ 81-1302 (j) (3) and 81-1315 (d) (Repl. 1960). Furthermore, in Sullivan, we cited with approval a Delaware holding, which in turn quoted from a Pennsylvania decision, that a legitimate child is entitled to workmen’s compensation benefits from the employer of the child’s deceased parent, irrespective of actual dependency. So “genealogy” is, after all, more important than dependency as our act has been written and interpreted.
While the majority gives lip service to the presumption of legitimacy, I find no precedent for the casual treatment given it in finding somehow that there was support for the commission’s findings “by the clearest evidence of a substantial nature.” [Emphasis mine.]
In this case the commission failed to properly apply the presumption that has been said to be one of the strongest known to the law, i.e., that a child born during wedlock is the child of the husband. Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248. The general rules as to burden of proof in common law actions for personal injuries and in civil actions generally, ordinarily apply to workmen’s compensation proceedings. Bradshaw v. Claridy, 213 Tenn. 297, 375 S.W. 2d 852 (1964). See also, Pannell v. State Compensation Commissioner, 126 W. Va. 725, 30 S.E. 2d 129 (1944). The presumptions applied in common law and civil cases are also commonly applied in workmen’s compensation cases. See, e.g., Brynildsen v. Mt. Vernon Novelty Curtain Co., 239 App. Div. 566, 268 N.Y.S. 600 (1933); RCS Lumber Co. v. Sanchez, 136 Colo. 351, 316 P. 2d 1045 (1957). The general principle as to presumptions as to legitimacy and the burden of proof to rebut it which is applicable in other cases is likewise applicable in workmen’s compensation cases. Hooley v. Hooley, 141 Ind. App. 101, 226 N.E. 2d 344 (1967); 2 Workmen’s Compensation Law, Larson, 11-37, § 62.22. Evidence to rebut the presumption of legitimacy must be clear, cogent and convincing. Hooley v. Hooley, supra; Ash v. Modern Sand & Gravel Co., 234 Mo. App. 1195, 122 S.W. 2d 45 (1938).
By application of such presumptions, it has been held in workmen’s compensation cases that the presumption of legitimacy may be overcome by evidence that the husband could not have had access to the mother when, in the course of nature, the child must have been conceived. Hooley v. Hooley, supra; Ash v. Modern Sand & Gravel Co., supra; Smith v. National Tank Co., 350 P. 2d 539 (Wyo., 1960). Even in compensation cases, in order to overcome the presumption of legitimacy, it has been held, on the basis of rules in other civil cases, that it must be shown conclusively that the lawful husband could not have had intercourse with the wife at the beginning of any reasonable period of gestation. Ash v. Modern Sand & Gravel Co., supra.
We have said that the presumption may be overcome by sufficient evidence of impotency or entire absence of the husband at the time when the child, in the course of nature, could have been begotten. Earp v. Earp, 250 Ark. 107, 464 S.W. 2d 70. The presumption may be overcome only by the clearest evidence that the husband was impotent or without access to the mother. Thomas v. Barnett, supra. We have said that it must be plainly proved that it was impossible that the husband could have been the father. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22. This may be done by blood tests or by showing that the husband could not have had access to the mother. Richardson v. Richardson, 252 Ark. 244, 478 S.W. 2d 423; Jacobs v. Jacobs, supra.
This degree of proof was not even remotely approached in this case. There was no evidence which could possibly have afforded a basis for overcoming the presumption other than the testimony of Christie Lee Davis. She testified that she and Elbert Davis lived in Crossett until the last of November, 1968, having then been separated a week or two. She said she would come and go and that he would come to Hamburg where she was and go back to Crossett and that the final separation was in the last part of November. Both continued to live in Ashley County until his death. She said that he continued to “come around her” until his death. Henry Lee Dunn was born on July 14, 1969, six to seven months after the separation. She started seeing Henry Lee Dunn, Sr. in December, 1968. She said that only Elbert Davis could be this child’s father, but on another occasion said that he “could have” been. She said she had sexual relations with Davis right up to the time of the separation, and had not during the preceding six months had sexual relations with anyone else. The physician’s records showed that this child’s birth was normal.
We have said that when the husband resided within thirty miles of the place the wife lived at all times within the period in which the child could have been begotten, it is a matter of common knowledge that access of the husband is not impossible. Scott v. State, 173 Ark. 625, 292 S.W. 979.
It is true that the credibility of this witness was suspect because of the fact that she had made conflicting and contradictory statements, but still her testimony is the only evidence that could have been the basis for rebuttal of the strong legal presumption. Discounting her testimony because of her obvious interest would strengthen, rather than weaken, the presumption.
Whatever adults may have said about the paternity of Henry Lee Dunn, Jr., he has never been consulted or given an opportunity to speak. Because he cannot, the strongest presumption known to the law was afforded for the protection of those like him, and no one else. It seems capricious to sweep it away on the unsatisfactory evidence presented. A liberal interpretation and application of the Workmen’s Compensation Act calls for better treatment of this helpless minor. I would reverse the judgment of the circuit court and the action of the commission on the claim of Henry Lee Dunn, Jr.