|IN RE: CLETUS TYRRELL, DEC'D.||)||DOCKET NO. 12,121|
|Claim No. C-439432||)||DECISION AND ORDER|
- Petitioner, Ethel Tyrrell, by
- John E. Calbom
- Employer, Yager Construction Co.,
- Department of Labor and Industries, by
- The Attorney General, per
- L. E. Prediletto, Assistant
Appeal filed by the petitioner, Ethel Tyrrell, on July 1, 1959, from an order of the supervisor of industrial insurance dated June 22, 1959, rejecting her claim for compensation for William Albert Davis, Jr., a minor stepgrandson of the deceased workman. Sustained.
As the surviving widow of the deceased workman, Cletus Tyrrell, Ethel Tyrrell was placed on the pension rolls, effective June 25, 1957, by a department order dated May 18, 1959. On June 2, 1959, Ethel Tyrrell, as representative of William Albert Davis, Jr., her minor grandson and stepgrandson of the deceased workman, made application to the department for compensation for said minor. On June 22, 1959, a department order was issued as follows:
"WHEREAS application for compensation has been now made by the representative of William Albert Davis, Jr., a minor and grandson of the deceased, Cletus G. Tyrrell, said application being made on the basis of an order of the Superior Court for King County dated August 7, 1953, releasing said William Albert Davis, Jr., into the temporary custody of the maternal grandmother, Ethel Tyrrell, widow of the above named deceased, and 
WHEREAS the said William Albert Davis, Jr., is not the child of the deceased as the word "child" is defined in Section 51.08.030 R.C.W. and, further, that compensation is payable to a grand- son of a workman whose death results from an injury only when the deceased workman leaves surviving no widow, widower or child (Section 51.08.050 R.C.W.) and
IT IS THEREFORE ORDERED that the application for compensation for William Albert Davis, Jr., is hereby denied for the above reasons."
On July 1, 1959, Ethel Tyrrell, the surviving widow of Cletus Tyrrell, Deceased, appealed to this board, and her appeal was granted on July 23, 1959, and set for conference.
At said conference, held in Moses Lake, Washington, on August 12, 1959, the petitioner, Ethel Tyrrell, was not present in person, but was represented by John E. Calbom, her attorney. The employer, Yager Construction Co., was not represented, and the department of labor and industries was represented by L. E. Prediletto, assistant attorney general.
At this conference, counsel for the petitioner and the department agreed, for the record, that William Albert Davis, Jr., born October 3, 1952, is the grandson of Ethel Tyrrell, and was the stepgrandson of the deceased workman; that said minor was not adopted by the deceased and Ethel Tyrrell, his widow, but had been in the Tyrrell household since August of 1953, pursuant to a King County Juvenile Court order, dated August 7, 1953, wherein Catholic Charities was given temporary custody of the minor child with the right to place said child in the temporary custody of Ethel Tyrrell, after an investigation by said charities. No subsequent order as to custody had been entered. It was further agreed that this case might be submitted for a decision and order by this board, based on the above agreed facts, and on the complete department file. 
The only issue presented by this appeal is whether or not Ethel Tyrrell, surviving widow of the deceased workman, is entitled to compensation for William Albert Davis, Jr., minor stepgrandson of the deceased workman.
It is contended by the petitioner in her notice of appeal that the supervisor's order of June 22, 1959, was in error because the deceased stood "in loco parentis" to the minor stepgrandson on the date of the decedent's death.
A search has failed to disclose any case in this state in which the Supreme Court has considered the precise question raised by the petitioner. In State ex rel. Gilroy v. Superior Court, 37 Wn. (2d) 926, the Supreme Court reversed the lower court's decision that the operator of a maternity hospital was liable for funds expended by the King County Welfare Department in placing a minor child in foster home care after the child had been left by the child's mother in the care of the operator, based upon a finding that the operator was "in loco parentis" to the child. In reversing the lower court, the court quotes 67 CJS 803, Sec. 71, as follows:
"The term 'in loco parentis' has been defined as in the place of parent charged factitiously with a parent's rights, duties, and responsibilities; more specifically, the relationship which a person assumes toward a child not his own, holding the child out to the world as a member of his family toward whom he owes the discharge of parental duties. It has been said that the accepted definition of a person 'in loco parentis' is one who means to put himself in the situation of a lawful parent to the child with respect to the office and duty of making provision for it; one assuming the parental character and discharging parental duties; a person standing 'in loco parentis' to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption."
The Court also quotes from Sec. 72, pg. 804, of the same  text:
"Where one is 'in loco parentis', the rights, duties, and liabilities of such persons are the same as those of the lawful parent. The assumption of the relation is a question of intention, and not of chance, which may be shown by the acts and declarations of the persons alleged to stand in that relation."
The supreme court goes on to say:
"Under the authorities, it seems clear that the relationship of in loco parentis becomes established only when a person intends to assume toward a child the status of a parent." (Emphasis supplied).
Admittedly, the principal basis of the court's decision in the Gilroy case, supra, was on statutory construction, but the court was unable to find anything in the record that would indicate any intention by the operator to stand in loco parentis to the child. The record before us here is bare as to those "acts and declarations" of the deceased which would show his intention to assume the relationship. The mere fact that the child lived in his household would not, by itself, be finally determinative of that intention. In Kransky v. Glen Alden Coal Company, 47 Atlantic (2d) 645, 354 PA 425, the Supreme Court of Pennsylvania decided a case under their workmen's compensation act adversely to the petitioner. The deceased was living in a meritricious relationship with the grandmother of the child "in question". The applicable Pennsylvania statute, 77 PS, Sec. 562, specifically provides "if members of the decedent's household at the time of his death, the terms 'child' and 'children' shall include step- children, adopted children, and children to whom he stood in loco parentis." The court states that in order to be entitled to benefits under the act, it must be shown "(1) That the child was a member of the employee's household at the time of his death, and (2) that the later stood in loco parentis to the child." The court goes on to say, "The first requisite calls for a finding of  fact; the second raises a conclusion of law." Discussing the relationship, the court's language is as follows: "A person who means to put himself in the situation of the lawful father of the child, with reference to the father's office and duty of making provision for the child...but always the intention to assume a parent's responsibility for a child is an important element in determining the existence of the relationship." The Pennsylvania court disclaimed being swayed by the meritricious relationship of the parties, and said that such a relationship did not preclude the establishment of in loco parentis. The court believed the evidence as a whole but did not sustain the petitioner's claim and pointed out that, from all that appeared in the record, the deceased may merely have supported the child in his home as an accommodation to the child's grandmother, without having formed any intention to assume the parent's responsibility for the child.
From all that appears in the record on this appeal, the same may be said here. There is nothing more in the record here than that the child had lived in the deceased's home. The child was still a ward of the court at the time of the deceased's death, and was placed in his home in the temporary custody of his wife alone, subject to a possible later adoption by qualified persons. All facts other than the child's residence in the deceased's home would seem to negate the forming of any intention by the deceased to stand in loco parentis to the child. We must conclude, there- fore, that the petitioner has failed to sustain the burden of proof that such a relationship was formed.
However, even if we were to assume, arguendo, that the relationship of in loco parentis existed, the question still remains whether the surviving spouse is entitled to receive compensation on behalf of her minor grandchild under the provisions of the workmen's compensation act. The applicable statute under which she was granted a pension is  R.C.W. 51.32.050 (2), which provides that:
"If the workman leaves a widow or widower, a monthly payment of $125.00 shall be made throughout the life of the surviving spouse, to cease at the end of the month in which remarriage occurs, and the surviving spouse shall also receive per month for each child of the deceased at the time any monthly payment is due, the following payments...."
"Child" is defined by R.C.W. 51.08.030 as follows:
"'Child' means every natural born child, post-humous child, stepchild, child legally adopted prior to the injury, and illegitimate child legitimated prior to the injury, all while under the age of 18 years."
It is the general rule that the workmen's compensation act is to be liberally construed as to those who come within its provisions. However, applicants are held to strict proof of their right to receive benefits. D'Amico v. Conguista, 24 Wn. (2d) 674. Further, where the language of the act is not ambiguous, there is no room for construction. Lowry v. Dept. of L. & I., 21 Wn. (2d) 538. R.C.W. 51.32.050 very specifically states that the surviving spouse shall also receive payment for each child of the deceased and R.C.W. 51.08.030 defines child. There is no ambiguity in the definition and, while a stepchild is included, there is no mention of a grandchild or a step grandchild.
The Pennsylvania statute, as we pointed out in citing Kransky v. Glen Alden Coal Company, supra, specifically provides that the term "child" shall include persons "to whom the deceased stood in loco parentis." Inasmuch as posthumous children, stepchildren, legally adopted children and illegitimate children legitimated prior to the injury were specifically included under the definition of "child" under our statute, it seems obvious that it was not intended to include children to whom the deceased stood in loco parentis. This is in accordance with the well established rule of statutory construction that the express mention of one  thing in a statute excludes all others (expressio unius est exclusio alterius). This rule was stated by our court in State ex rel. Port of Seattle v. Department of Public Service, 1 Wn. (2d) 102 as follows:
"Where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others, and the natural inference follows that it is not intended to be general."
We must conclude, therefore, that the petitioner's grandson, William Albert Davis, Jr., is not a "child" of the deceased workman within the meaning of the act and that the supervisor's order of June 22, 1959, should be sustained.
In view of the foregoing, and after reviewing the entire record herein, including the department file, the board finds as follows:
- As the surviving widow of Cletus G. Tyrrell, the deceased workman, Ethel Tyrrell, was placed on the pension rolls, effective June 25, 1957, by department order dated May 18, 1959. On June 2, 1959, Ethel Tyrrell, as representative of William Albert Davis, Jr., her minor grandson, stepgrandson of the deceased workman, made application for com- pensation under the workmen's compensation act, for said minor. On June 22, 1959, a department order was issued denying the application of Ethel Tyrrell. On July 1, 1959, she appealed to this board, and her appeal was granted on July 23, 1959, and set for a board conference.
- There is no evidence in the record that the deceased workman, Cletus G. Tyrrell, intended to assume the duties and responsibilities of a parent with respect to William Albert Davis, Jr.
Based on the foregoing findings of fact, the board concludes:
- This board has jurisdiction of the parties and subject matter of this appeal.
- The deceased workman, Cletus G. Tyrrell, did not stand in loco parentis to William Albert Davis, Jr., on the date of the deceased's  death.
- William Albert Davis, Jr., is not a "child" of Cletus G. Tyrrell, deceased, as contemplated by the workmen's compensation act entitling the surviving widow to compensation for said minor.
- The order of the supervisor of industrial in- surance, dated June 22, 1959, is correct and should be sustained.
Now, therefore, it is hereby ORDERED that the order of the supervisor of industrial insurance dated June 22, 1959, be, and the same is hereby, sustained.
Dated this 28th day of June, 1960.
BOARD OF INDUSTRIAL INSURANCE APPEALS
J. HARRIS LYNCHChairperson
HAROLD J. PETRIEMember