I cannot agree with the conclusion of Justice Lennon.
A divorced man was by the decree of divorce required to pay $20 a month for the support of his minor child, whose custody was awarded to its mother.
A person employed this man and while he was so employed he was killed by accident arising out of, and in the course of, the employment.
Thereupon the Industrial Accident Commission, although this man was liable for only $20 a month during the child's minority, a period of ten years only, amounting at most to only two thousand four hundred dollars, made an order compelling the employer of the man to pay for the benefit of the child $4,175 to be invested, held in trust and paid to the child in installments of $25 a month, and continuing, if paid out of principal alone, until the child is twenty-two years old and as much longer as the accruing interest will carry it. It does not seem reasonable to conclude that the act was intended to produce a result so absurd and unjust. Its terms should receive a strict construction, if necessary, to avoid such injustice.
The father was legally liable for only $20 a month for the child's support. It was not a full liability. It was limited to that sum. The child was not one "for whose maintenance such parent was legally liable," within the meaning of section 14 (a) (2) of the Workmen's Compensation Act (Stats. 1917, p. 844). The quoted language obviously refers exclusively and only to a complete liability, a liability for the expenses or cost of all necessaries required for the support of the child, a parent who could be made to pay for such necessaries, if furnished by a third person, *Page 492 whatever their reasonable cost, not a parent who could not be made to pay beyond a limited sum, nor one who could not be made to pay at all to any person except the mother.
In Continental Casualty Co. v. Pillsbury, 181 Cal. 389, 8 A. L. R. 1110, 184 P. 658, the husband was declared to be "legally liable" for the support of the wife, although they were living apart and she had secured judgment against him for her maintenance. Some language in that opinion may seem inconsistent with the foregoing when considered without reference to the context. But the real point there decided is that the primary obligation of the husband for the wife's support remains, notwithstanding the maintenance decree. In this case the father is not "legally liable" when deprived of the custody of his child, except as provided in the decree of divorce. The two cases are unlike in fact and in law and that case is not inconsistent with my position in this case.
For these reasons I am of the opinion that such a child is not conclusively presumed to be "wholly dependent" for support upon the parent who is not legally liable for its entire maintenance, if need be, and that the award is not warranted by the law.
Rehearing denied.
Lawlor, J., Wilbur, J., Lennon, J., Olney, J., and Kerrigan, J., pro tem., concurred.