BARR'S NEXT OF KIN v. Cherokee, Inc.

220 S.C. 447 (1951) 68 S.E.2d 440

BARR'S NEXT OF KIN ET AL.
v.
CHEROKEE, INC. ET AL.

16556

Supreme Court of South Carolina.

November 7, 1951.

Messrs. T.B. Bryant, Jr., and Fred R. Fanning, Jr., of Orangeburg, for Appellants.

Messrs. C.T. Graydon and J. Bratton Davis, of Columbia, for the Respondent, Darnell Brayboy Brazell as Guardian ad Litem for Margaret Carol.

The Order of Judge Grimball requested to be reported follows:

This case presents the problem as to who is entitled to the benefits under the Workmen's Compensation Law of South Carolina on account of the death of McCoy Barr.

It is admitted that McCoy Barr was employed by the defendant, Cherokee, Inc., on the fifth day of September, 1949, on which date he sustained injuries, arising out of and in the course of his employment, which resulted in his death. It was further admitted that, at that time Cherokee, Inc., was operating under and subject to the South Carolina Workmen's Compensation Act and all of its amendments, with St. Paul Mercury Indemnity Company as its insurance carrier. It was also admitted by the defendants that they are liable in the maximum amount ($6,000.00) and that they are prepared to pay such benefits to such party or parties as may be determined to be entitled thereto under the act.

There are now two classes of claimants who are seeking the benefits of the act:

1. Margaret Carol Brazell who claims as the illegitimate child of the deceased, McCoy Barr; and

2. Chester Barr, Inez Hutto Barr, James Barr and Roy Barr who respectively claim as the father, mother and brothers of the deceased, McCoy Barr.

The claims of these two classes were heard before a single commissioner of the South Carolina Industrial Commission in December, 1949, and subsequent thereto the Commissioner made an award finding as a matter of fact that Margaret Carol Brazell is the natural child of McCoy Barr and was dependent upon him for support, and, therefore, entitled to the benefits of the act. This award further provided for the payment of funeral expenses and medical, surgical, hospital and doctor's bills.

From the award of the Single Commissioner, appeal was taken to the full Commission by Chester Barr, Inez Hutto Barr, James Barr and Roy Barr. The appeal was based upon their statement, "that the award of the Commissioner is contrary to the law and evidence."

On appeal the full commission by a three to two vote reversed the single commissioner, and the benefits were awarded to Chester Barr, father, Inez Hutto Barr, mother, James Barr, brother and Roy Barr, brother. The majority of the commission found that Margaret Carol Brazell was not the illegitimate child of the deceased and not dependent upon him for support.

From that award a very vigorous dissenting opinion was filed by two members of the commission.

In due course an appeal to the Court of Common Pleas for Richland County from the majority award was filed in behalf of Margaret Carol Brazell, and it came on to be heard before me in November, 1950.

All of the evidence in the case at bar was presented at the hearing of the single commissioner — none was presented to the full commission. The evidence was referred to and discussed at length in the single commissioner's award; but none of the evidence is referred to or discussed in the award of the majority of the commission. Not one of the three members of the commission who signed the majority award was present when the hearing was held by the single commissioner, and not one of the witnesses in the case appeared before the full commission.

The record shows the following facts to be undisputed:

Mrs. Brazell, mother of the claimant, Margaret Carol, and her husband, Curtis Ellis Brazell, were separated around Christmas time, 1946, and remained separated about a year, living separate and apart and having no sexual relations during that time; that during this year Mr. Brazell spent some time in various hospitals with tuberculosis; that for a period during the early part of 1947 Mrs. Brazell and the deceased, McCoy Barr, lived together as man and wife in Jacksonville, Florida; that the claimant, Margaret Carol, was born to Mrs. Brazell on November 9, 1947; that Mr. and Mrs. Brazell later became reconciled for a short time, but when they separated, Mr. Brazell left her and at that time he told her that she would have to keep Barr's child (Margaret Carol); that Mr. Barr, the deceased, took this child and Mrs. Brazell to visit his cousins on more than one occasion; that Barr acknowledged Margaret Carol to be his child and named her for his cousin; and that he wanted his cousin to take care of Margaret Carol if anything should happen to him and Mrs. Brazell, because his family objected to his relationship with Mrs. Brazell; that he was living with Mrs. Brazell and Margaret Carol at the time of his death, and that his parents objected to it; that there was a strong physical resemblance between the deceased and Margaret Carol, and a complete dissimilarity of coloring and resemblance between Margaret Carol and Mr. Brazell; that all of the neighborhood knew that the deceased was living with Mrs. Brazell and Margaret Carol at the time of his death, and that he treated Margaret Carol just as any father would have treated his child.

In addition, there is the uncontradicted testimony of Mrs. Brazell that Barr, the deceased, is the father of Margaret Carol; and the testimony of Mr. Brazell that he is not the father of Margaret Carol and that he knew that his wife and Barr were running around, and living together; and the testimony of the deceased's cousin that Barr had brought Mrs. Brazell and Margaret Carol to visit in her home and that Barr acknowledged the paternity of Margaret Carol whom he named for his cousin.

What stronger testimony or evidence could be found?

If, other than the three members of this commission who voted to reverse the opinion and award of the hearing commissioner, there are any persons who did not know that Mrs. Brazell and Mr. Barr were living together as man and wife, and that he was the father of Margaret Carol, such persons are not disclosed in the record. The witnesses who took the stand knew it — none denied it.

From time immemorial, the Courts of this State have said that it is the duty of a reviewing body, in examining a record, to carefully review the entire record and to give due weight to the fact that the original fact finder "saw the witnesses, heard the testimony delivered from the stand, and had the benefit of that personal observation of and contact with parties and witnesses which may be of peculiar value in arriving at a correct result". Baylor et al. v. Bath et al., 189 S.C. 269, 1 S.E. (2d) 139, 143.

Even a casual examination in the case at bar shows that the hearing commissioner had the benefit of seeing, hearing and observing the demeanor of the mother of the child involved herein, the husband of the mother, the child itself, photographs of the deceased, the coloring of the husband of the child's mother, the parents of the deceased, the brother of the deceased, the cousin of the deceased, the exhibits in the case, neighbors and friends of the deceased, and the grandparnts of the infant claimant. The benefit of all of this important experience, information, observation and contract was not before the full commission when the case was heard by it.

The majority of the full commission completely and arbitrarily disregarded the evidence as well as those particular things which were of peculiar value to the hearing commissioner when he decided the case as he did. While that is a bold statement, it is nevertheless true because the record shows that there is absolutely no evidence rebutting the direct, positive, unequivocal and corroborated evidence that the deceased was the father of the infant Carol.

The General Assembly of South Carolina, in its wisdom. saw fit to provide in the Workmen's Compensation Act, compensation for an "illegitimate child." Sec. 7035-2(l) and 7035-42 of the Code of Laws of South Carolina, 1942. And, it is up to the commission and the Courts to see that the intent of the legislature is carried out.

North Carolina, too, has such an Act, and it is identical with South Carolina's. In a Workmen's Compensation case, Lippard et al. v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 802, the Supreme Court of North Carolina points out very clearly that, with regard to illegitimate children, the philosophy of the common law which denied such children any rights, legal or social, as against their father, has been discarded. The words of the Court are as follows:

"The dependency which the statute recognizes as the basis of the right of the child to compensation grows out of the relationship, which in itself imposes upon the father the duty to support the child, and confers upon the child the right to support by its father. The status of the child, social or legal, is immaterial.

"The philosophy of the common law which denied an illegitimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute."

If the legislature wants illegitimate children taken care of then it is incumbent upon us to do so regardless of what our personal wishes, thoughts or desires in the matter may be. But — how can the intent of the legislature be carried out if a majority of the Commission and this Court turn their backs on the convincing testimony of the three persons (the mother, the father and the mother's husband) who, above all else, know the true facts.

Who, better than the mother, knows who is responsible for her pregnancy? Who, better than Mr. Brazell, knows that he is not responsible for Mrs. Brazell's pregnancy with Carol? Who, better than the deceased (Barr), knew that he was responsible for Carol's birth? And — he acknowledged it.

In the case of Morgan v. Susino Construction Co., 130 N.J.L. 418, 33 A. (2d) 607, 609, affirmed 131 N.J.L. 329, 36 A. (2d) 604, a case similar to the case at bar, in that it involves an illegitimate child claiming compensation on account of the death of his father, although the deceased was not the husband of the mother of the child, the mother being married to another man, it was held in an unanimous decision written by the Chief Justice of the Supreme Court of New Jersey that in a compensation proceeding by a deceased employee's illegitimate son testimony of the mother and her husband from whom she was living apart was properly admitted to show non-access and to deny cohabitation. And testimony concerning conversations had with the deceased employee regarding his paternity of the child was admissible under the pedigree exception to the "hearsay rule."

In that case, the fact that the husband of the mother of the illegitimate child came to see other children in the home "once or twice every other week" for some years did not prevent both the wife and the husband from being permitted to testify that there had been no cohabitation between them since their separation.

The conclusion of the Hearing Commissioner is in line with the trend in matters of this sort in Workmen's Compensation cases. Horovitz on Workmen's Compensation, page 300, cites cases declaring that it is not against a sound public policy, either upon moral grounds or as a matter of law and justice, that illegitimate children should not be penalized for their illegitimacy by being denied the rights and benefits accorded to all other members of the family of an employee. Piccinim v. Connecticut Light and Power Co., 93 Conn. 423, 106 A. 330.

If that were not true the Legislature would have excluded, in terms, illegitimate children from the right to have compensation for the accidental death of an employee. Thompson v. Vestal Lumber and Mfg. Co., 208 La. 83, 22 So. (2d) 842.

To paraphrase an observation quoted with approval in Hertz v. Industrial Commission, Ohio App., 72 N.E. (2d) 755, the child is in nowise responsible for her existence or status. She is here, and must be cared for and supported. She was cared for by the deceased up to the time of his death. It was his moral and legal duty to care for her and he was responding to that duty when death overtook him.

The obvious intention of the Act was to secure workmen and their dependents against becoming objects of charity by allowing reasonable compensation for all such calamities as are incidental to employment. Green v. Burch, 164 Kan. 348, 189 P. (2d) 892.

The facts in the case, as adduced before the Hearing Commissioner, are so close to the facts in the case of C.F. Wheeler Co. et al. v. Pullins, 1943, 152 Fla. 96, 11 So. (2d) 303, 304, that I quote the following from the Wheeler case: "Parenthetically, it is our view that the acts of the deceased workman immediately prior to the accident may be construed as an acknowledgment of his parentage of the child for, it will be recalled, he lived with the mother continuously for many months and doubtless knew that she was enciente. It is contrary to human experience for a man to continue his cohabitation with a woman as her husband if he entertains doubt that he is the father of the child she is bearing."

If this Court does not reverse the majority of the full commission and affirm the hearing commissioner in this case, it is difficult for me to imagine any case in which a child can be proved to be an illegitimate child. Then — what good is the section of the act providing for an illegitimate child?

None of the facts set forth herein are rebutted by the evidence. Even the parents and brothers of the deceased offered no conflicting or contradictory evidence. The father of the deceased very frankly admitted that he knew of his son's keeping company with Mrs. Brazell. The fact that none of the evidence is rebutted may account for the failure of the majority award of the commission to discuss these facts as adduced before the hearing commissioner.

The majority of the commission did just what the Courts have said it does not have the power to do, and that is making a finding of fact without evidence to support it. Craddock's Case, 310 Mass. 116, 37 N.E. (2d) 508; International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N.W. 53.

I cannot bring myself to concur in the majority opinion which, in my judgment, has no basis in fact as disclosed in the record. In my acknowledged opinion the evidence is conclusive of the fact that Margaret Carol Brazell is the illegitimate child of the deceased McCoy Barr and was dependent on him for support.

The presumption of legitimacy disappears when all of the testimony and evidence points to Barr's paternity of Carol. Mr. Justice Wiest, in Patt v. Dilley, 1935, 273 Mich. 601, 263 N.W. 749, 751, said: "Presumptions disappear when the facts appear. The facts appear when the evidence is introduced from which the facts may be found. Presumptions cannot be weighed against evidence, for they fade out in the light of evidence, no matter how contradictory the evidence."

The law in South Carolina regarding presumptions is that where a disclosure of circumstances is made by clear and uncontradicted evidence, warranting only the inference supported by the evidence, any finding based solely on a presumption is arbitrary and without evidentiary support. A jury should not be permitted to render a verdict based solely on conjecture. Johnson v. Atlantic Coast Line R. Co., 217 S.C. 190, 60 S.E. (2d) 226; McMillan v. General American Life Insurance Co., 194 S.C. 146, 9 S.E. (2d) 562; Kelley v. Capital Motors, Inc., 204 S.C. 304, 28 S. E. (2d) 836.

In Johnson v. Atlantic Coast Line R. Co., supra, it was held that where the defendant railroad killing calves produced as witnesses the engineer and fireman of the train which struck the calves and their testimony clearly and undisputedly showed that they exercised due care and took every precaution to avoid striking calves, the presumption of negligence arising from proof of calves being killed by train did not authorize submission of railroad's negligence to the jury.

There is a presumption against suicide and in an action on a life policy, the beneficiary need not prove more than the insurance contract and the death of insured in order to establish a prima facie case and up to that point can rely on the presumption against suicide, but it has been held that a directed verdict for the insurer is proper where the only reasonable inference to the drawn from the testimony is that the insured intentionally took his own life. McMillan v. General American Life Insurance Co., 194 S.C. 146, 9 S.E. (2d) 562. Another illustration may be found in actions by a bailor to recover for the loss of bailed property or damage to same. When the bailor shows that the property has not been returned or that it has been returned in a damaged condition, he makes out a prima facie case, and the burden is then shifted to the bailee of showing that he used ordinary care in the handling and keeping of the property. It is his duty to disclose the facts and circumstances surrounding the loss or damage. But it has been held that where the testimony offered by the bailee warrants only an inference of the exercise of ordinary care, it is proper to direct a verdict in his behalf. Kelley v. Capital Motors, Inc., 204 S.C. 304, 28 S.E. (2d) 836.

The claimant, Margaret Carol, produced several disinterested witnesses, and also several who were interested; but all of them were familiar with the situation involved herein, and they had a special knowledge of the circumstances. Their testimony is clear and undisputed.

This Court is of the opinion that the evidence is conclusive of the fact that Margaret Carol Brazell is the acknowledged illegitimate child of the deceased, McCoy Barr, and was dependent on him at the time of his death, and this full commission should have so declared. The failure of a majority of the full commission to do so is an error of law.

After a thorough examination of the record, and due consideration of the fact that the hearing commissioner "saw the witnesses, heard the testimony delivered from the stand, and had the benefit of the personal observation of, and contact with, the parties and witnesses," which was "of peculiar value in arriving at a correct result," I am of the opinion that the hearing commissioner unquestionably arrived at the correct findings of fact and conclusions of law, and that his award should be affirmed. To paraphrase the words of the Supreme Court of South Carolina, Heretis v. Taggs, 217 S.C. 369, 60 S.E. (2d) 689: the hearing commissioner, having a much better opportunity to observe the witnesses, their demeanor, etc., and having had the advantage of hearing in person and seeing in person what took place, is in far better position to judge the truth than the majority of the full commission or of this Court, and he, in making his findings and award, came far nearer to doing actual justice than the appellate bodies can do.

It is, therefore, ordered, adjudged and decreed:

1. That the award dated October 16, 1950, of the majority of the full commission is hereby reversed, and

2. That the opinion and award of the single commissioner filed March 8, 1950, is reinstated, and

3. That the defendants shall pay to the Guardian to be appointed for the minor child and only surviving dependent of the deceased, Margaret Carol Brazell, compensation at the compensable rate of $23.72 per week for a period of 350 weeks, on account of the death of McCoy Barr, and

4. That the defendants shall pay to the proper party or parties a sum not to exceed $200.00 for funeral expenses. The total amount payable under this Award, including funeral expenses, shall not exceed the sum of $6,000.00, and

5. That all medical, surgical, hospital and doctors' bills directly incurred as a result of said accident shall be the liability of the defendants.

November 7, 1951.

FISHBURNE, Justice.

On September 5, 1949, McCoy Barr. an unmarried man, was killed by accident while in the employ of the defendant, Cherokee, Inc. The employer and its insurance carrier, St. Paul Mercury Indemnity Company, admit that they are liable in the maximum amount of $6,000.00, and are prepared to pay the benefits to such parties as may be entitled thereto under the Workmen's Compensation Act. Claim was filed with the Industrial Commission by the father, mother and two brothers of McCoy Barr, as next of kin. In opposition, a claim was filed with the Commission for the benefits under the Workmen's Compensation Act by Darnell Brayboy Brazell, as guardian ad litem for Betty Lou Brazell and Margaret Carol Brazell, alleged illegitimate daughters of the deceased, dependent upon him for support.

After hearing the evidence, the Commissioner before whom the testimony was taken, disallowed the claim of Betty Lou Brazell and the Next of Kin, but found as a fact that Margaret Carol Brazell is the illegitimate child of the deceased McCoy Barr by Darnell Brazell, and wholly dependent upon him at the time of his death; hence the entire amount of benefits was ordered to be paid to her general guardian.

Upon appeal to the full Commission, the findings of fact and conclusions of law of the single Commissioner were reversed, and in an order signed by a majority of the Commission, it was held that the claimant, Margaret Carol Brazell is not the illegitimate child of the deceased, and not dependent upon him for support. It was further ordered that the entire amount of benefits under the Workmen's Compensation Law be paid to the next of kin of the deceased, McCoy Barr.

Appeal being taken to the Court of Common Pleas for Richland County, the order of the Commission was reversed, and the finding and award of the single Commissioner, holding that Margaret Carol Brazell is the illegimate child of the deceased and entitled to all the benefits, — was reinstated. This appeal by the Next of Kin brings up for review the correctness of the Circuit Decree, and the issue presented involving the legitimacy or illegitimacy of Margaret Carol Brazell.

Curtis Brazell and Darnell Brayboy, mother of Margaret Carol Brazell, were married in 1938 and resided in Columbia. After her marriage, she gave birth to three children, — Margaret Carol, who was born November 9, 1947, being the youngest. Both husband and wife testified that they separated the latter part of December, 1946, and stayed separate and apart until December, 1947, and that throughout this time they never lived together as man and wife, nor had sexual intercourse. The wife, Darnell, stated that during this period of separation, — that is, from March 30, 1947 until May 11, 1947, — she went to Jacksonville, Florida, with the deceased, McCoy Barr, cohabited with him as his wife while there, and became pregnant with Margaret Carol. She testified positively that McCoy Barr was the father of the child; and her husband, Curtis Brazell, testified with equal emphasis that he is not her father.

Upon her return to Columbia, where the child was born, the husband and wife lived apart until about two weeks after the birth of Margaret Carol, which, as stated, occurred on November 9, 1947. The husband and wife, Curtis and Darnell, then became reunited, according to their testimony, and lived together as husband and wife for several months, following which they again separated and she resumed her illicit relations with McCoy Barr. However, it may be inferred that the husband and wife are now again living together.

We are concerned here with the admissibility and sufficiency of evidence to prove the illegitimacy of a child born in wedlock, because there is no dispute that Curtis and Darnell were legally married.

Throughout the taking of the testimony before the single Commissioner, the husband and wife were allowed to testify, over objection of appellants' counsel, as to the illegitimacy of Margaret Carol, and to testify to alleged facts which tended to prove non-access on the part of the husband. This testimony was ruled admissible and competent, and was so considered by the circuit court in passing upon the issue of illegitimacy.

It seems now to be well established in most jurisdictions, that unless otherwise provided by statute, neither husband nor wife may testify as to non-access between them in any case where the question of the legitimacy of a child born in wedlock is in issue. The evidence of non-access must come from third persons. 7 Am. Jur., Sec. 21, Page 640; Annotations, 69 Am. St. Rep. 571; 126 Am. St. Rep. 261.

In Jones on Evidence, Second Edition, Sec. 97 (96), Page 102, the rule is stated as follows:

"It is well settled on grounds of public policy, affecting the children born during the marriage, as well as the parties themselves, that the presumption of legitimacy as to children born in lawful wedlock cannot be rebutted by the testimony of the husband or the wife to the effect that sexual intercourse has or has not taken place between them; nor are the declarations of such husband and wife competent as bearing on the question. The rule not only excludes direct testimony concerning such intercourse, but all testimony of such husband or wife which has a tendency to prove or disprove legitimacy; for example, it was held incompetent to ask the husband, for the purpose of proving non-access, whether at a given time he did not live a hundred miles away from his wife and whether at that time he was not cohabiting with another person. Testimony of either party tending to show non-intercourse, or of any fact from which non-access may be inferred, or of any collateral facts connected with the main fact, should be scrupulously excluded, and if the illegitimacy is to be proved, it must be proved by other testimony.

"The rule rests not only on the ground that it tends to prevent family dissension, but on broad grounds of public policy; hence it applies when at the time of the examination of the husband or wife the other spouse is dead. Nor is the rule affected by the provisions of the codes enlarging the competency of the witnesses; nor does it depend upon the form of action or the parties; on the contrary it obtains whatever the form of legal proceedings, or whoever may be the parties. * * * While the rule prevents the wife from testifying that she has not had intercourse with her husband, it does not prevent the wife from testifying that another person than her husband has had or has not had connection with her."

The rule and the reasons therefor are well stated in Mink v. State, 60 Wis. 583 19 N.W. 445, 446, 50 Am. Rep. 386, where the court said: "This rule is founded on the very highest grounds of public policy, decency, and morality. The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him, by reason of impotency or imbecility, or entire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child."

Although the direct question has never been passed upon by our court, the above stated rule, we think, is founded upon sound public policy and should be adhered to.

The presumption of legitimacy, although rebuttable, is one of the strongest known to the law. 10 C.J. S., Bastards, § 3b, page 18. No child born in lawful wedlock can be decreed a bastard on any showing of circumstances which only create doubt and suspicion. Tarleton v. Thompson, 125 S.C. 182, 118 S.E. 421; State v. Shumpert, 1 S.C. 85; Kinnington v. Cato, 68 S.C. 470, 47 S. E. 719.

As was stated by this court in Wilson v. Babb, 18 S.C. 59: "The true test is whether the husband of the woman who gives birth to the child is its father; and this must, of necessity, in every case, be a question of fact. Where the child is born after lawful wedlock, and after the lapse of the usual period of gestation, it should require a very strong state of circumstances to overthrow the presumption of legitimacy, such as impossibility of access, absolute non-access, abandonment, or something equally as conclusive."

And it was held in the foregoing case that the burden in such cases is cast upon the party impeaching legitimacy, and such issue may be proved by any competent testimony sufficient to satisfy the mind of the tribunal before whom the question is raised.

In our view of the law, the lower court committed error, as did the hearing commissioner, in receiving and considering the evidence of non-access and illegitimacy given by Curtis Brazell and Darnell Brazell, the husband and wife.

With the testimony of husband and wife excluded, it becomes necessary to determine whether the record contains sufficient evidence from third persons upon which to make a finding of illegitimacy of Margaret Carol. While the rule above quoted from Jones on Evidence prevents the wife from testifying that she has not had intercourse with her husband, it does not prevent her from testifying as to illicit relations with other men in actions directly involving the parentage of the child.

It was stated in Kennington v. Catoe, 68 S.C. 470, 47 S.E. 719, that the unchaste conduct of the wife with reference to other men would not have the tendency to overthrow the presumption of legitimacy, unless it related closely to the period when the child was begotten. And the court held in State v. Shumpert, 1 S.C. 85, that no rule of law declares that a child is a bastard if the husband of its mother be absent during the nine months preceding its birth — what was the actual period of gestation in any particular case being a question of fact for the jury.

In our opinion, there is no testimony in this record, when we exclude the evidence of the husband and wife, as to illegitimacy — to reasonably warrant the inference of non-access on the part of the husband, Curtis Brazell, although his wife did have illicit relations with another man, — certainly not sufficient evidence to overcome the presumption that Curtis Brazell is the father of Margaret Carol.

There is considerable evidence from third persons that the deceased, McCoy Barr, asserted that he was the father of Margaret Carol, and claimed and treated her as his child. And, further, that McCoy Barr helped to support and care for Margaret Carol, and was living during the week ends with her and her mother during the last month and a half preceding his death. There is also testimony that there is a strong physical ressemblance between Margaret Carol and her reputed father. Mrs. Brayboy, the mother of Darnell Brazell, testified that she did not know if her daughter, Darnell, was pregnant before she left for Florida, but did not think she was.

In opposition to the foregoing testimony, the birth certificate of Margaret Carol issued by the State Board of Health, was offered in evidence. The child's name as therein entered is "Margaret Carol Brazell," and the father's name is given as "Curtis Ellis Brazell." Darnell Brazell, the mother, admitted that she gave her husband's name to the child, as above quoted, while she was in a Columbia hospital, two days after her birth; but she denies that she told the registrar that her husband Curtis, was the father of the child. However, she was at that time separated from her husband, and there is nothing in the record which could reasonably indicate that this information could have come from any source other than the mother, Darnell Brazell. This certificate constituted prima facie evidence of its contents, and on the whole record it was for the Industrial Commission to determine the truth of what it contained.

Code Section 7035-2(1) of the Workmen's Compensation Act provides that "the term `child' shall include a posthumous child * * * and a stepchild or acknowledged illegitimate child dependent upon the deceased * * *." And it is contended by respondent that the General Assembly, having seen fit to provide compensation for an acknowledged illegimate child, it is the duty of the Industrial Commission and the courts to see that the intent of the legislature is carried out. In support of this contention, the case of Lippard v. Southeastern Express Co., 207 N.C. 507, 177 S.E. 801, 802, is cited. In that case the North Carolina court stated: "The philosophy of the common law which denied an illegimate child any rights, legal or social, as against its father, and imposed no duty upon the father with respect to the child, is discarded by the statute."

But counsel overlook that in that case there was no controversial issue as to whether the child there involved was legitimate or illegitimate. The issue there presented, as stated by the court, was, "* * * [W]hether an illegitimate child born after the death of its father, who before his death had acknowledged his paternity of the child, is a dependent of its deceased father, within the provisions of the North Carolina Workmen's Compensation Act (Pub. Laws, 1929, e, 120)."

It was undoubtedly the purpose of our Workmen's Compensation Law to abrogate the common law rule with reference to illegitimacy, but the section, 7035-2(1), applies to children who are established as being illegitimate and acknowledged by the putative father. In our opinion, however, it was never intended to abrogate the rule of evidence founded upon the reasoning and experience of ages, which forbids either a husband or a wife to bastardize a child born in lawful wedlock. Nor was it intended to break down a rule founded in decency, morality, and public policy.

This question arose in the case of U.S. Fidelity & Guaranty Co. v. Henderson, 1932, Tex. Civ. App., 53 S. W. (2d) 811, which was an action involving the right to an award of workmen's compensation by minors claiming to be the children of the deceased workman. It was held that their mother, who had been living with the deceased workman, as his wife, was not competent to testify that she had not cohabited with one to whom she was legally married. The court stated that the law is settled that the testimony of neither the father nor the mother is admissible to prove the illegitimacy of a child born to them in wedlock, or to establish any facts tending to show that the child was illegitimate.

It has been held that recognition by a putative father is not sufficient to overthrow the presumption of legitimacy arising from birth during w e d l o c k. Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848. And this presumption of legitimacy is not rebutted by mere proof of adultery on the part of the wife during the period of gestation. Canaan v. Avery, 72 N.H. 591, 58 A. 509. Nor can it be rebutted by general reputation that the child was an illegitimate child. Erwin v. Bailey, 123 N.C. 628, 31 S.E. 844.

An effort was made to show that the husband, Curtis Brazell was in Ridgewood Sanitarium when the child, Margaret Carol, would, according to the laws of nature, have been begotton. However, the records of this sanitarium were introduced in evidence showing that he entered the Ridgewood Sanitarium on July 10, 1947, several months after the child could have been begotten, and there is no sufficient evidence in the record to show that prior to this time there was non-access to his wife, the mother of the child.

After a careful consideration of the record and the able briefs submitted by counsel, it is our opinion that the finding and award of the majority Commission should be reinstated, and the circuit decree reversed.

Judgment reversed.

STUKES, TAYLOR and OXNER, JJ., concur.

BAKER, C.J., dissents.

BAKER, Chief Justice (dissenting).

As always I dislike and hesitate to disagree with an opinion written by a member of this Court. But I think that the general rule that a husband and wife are not permitted to give testimony which has a tendency to disprove the legitimacy of a child, such as proving non-access or lack of sexual intercourse during the period of gestation, should not be applied to deprive a dependent child of the benefits under our Workmen's Compensation law that are accorded to an illegitimate minor child of a putative father upon whom such child was dependent for support. However, aside from this, it appears to me that the only reasonable inference from other testimony in the record, establishes that the child (Margaret Carol), was an illegitimate and the child of McCoy Barr, the deceased, and dependent upon him for support; and that the presumption that this child was the child of the husband, Curtis Brazell, has been completely rebutted.

It seems to me that the only conclusion which could have been reached was that reached by the Circuit Judge, and that his order should be affirmed. Let the order be reported.