For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justice Hall. The opinion of the court was delivered by Schettino, J. Hall, J. (dissenting).
[47 NJ Page 578] This is a workmen's compensation appeal. We granted certification (46 N.J. 423 (1966)) on petitioner's application from a judgment of the Appellate Division whose opinion is reported in 90 N.J. Super. 64 (1966). The appeal concerns the following part of N.J.S.A. 34:15-13*fn1 and more particularly the italicized parts:
"Dependents defined. g. The term 'dependents' shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease, or at the time of death, namely: Husband, wife, * * * children * * *.
Dependency shall be conclusively presumed as to the decedent's widow and natural children under 18 years of age who were actually a part of the decedent's household at the time of his death. Every provision of this article applying to one class shall be equally applicable to the other. * * * The foregoing schedule applies only to persons wholly dependent, and in the case of persons only partially dependent, except in the case of the widow and children who were actually a part of the decedent's household at the time of his death, the compensation shall be such proportion of the scheduled percentage as the amounts actually contributed to them by the deceased for their support constituted of his total wages * * *." (Emphasis added)
The issue is: Does the conclusive presumption of dependency of children under this section of the Workmen's Compensation Act apply only where the decedent parent is a male employee and not where as here the employee was a female?
The facts are as follows: On October 3, 1961 the petitioner's wife, Madeline Petrozzino, died from work-connected causes, survived by her husband, the petitioner, and her minor son, Charles, age 3. There was no dispute that the child was her child, under 18 years of age and actually part of his mother's household at the time of her death.
The petitioner contends that his child is within the precise class set forth in the language of the statute, that dependency of the child on the mother is conclusively presumed as to the infant son, that therefore the child is entitled to the statutory benefits. The Compensation Division, holding that the presumption did not apply to children of working mothers, denied benefits to the child. The County Court reversed, holding the presumption operated in favor of children regardless of whether the decedent was a working father or mother. The Appellate Division reversed the County Court and held that the word "widow" restricts the word "decedent's" to mean only a male decedent and that therefore the statute does not operate to create a conclusive presumption of dependency in favor of a child of a working mother.
We have recently reiterated that in construing the Workmen's Compensation Act it is axiomatic that a liberal construction be given. Close v. Kordulak Bros., 44 N.J. 589, 604 (1965). And more particularly where, as here, the dependency section must be interpreted, a construction must accomplish the statutory purposes of making the cost of work-connected injuries part of the cost of the employer's product, thus relieving society as a whole of the burden of supporting the dependents of those whose death is caused by work-connected injuries. Stellmah v. Hunterdon Cooperative G.L.F. Service, Inc., 47 N.J. 163, 169-170 (1966).
The original Workmen's Compensation Act was enacted in L. 1911, c. 95, p. 134, and contained no dependency provision analogous to section 13. However, in L. 1913, c. 174, p. 302 the act was amended to provide:
"The term 'dependents' shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death, namely: husband, wife, * * * children, * * *. * * * provided, however, that dependency shall be presumed as to a widow who was living with her husband at the time of his decease, and children under the age of eighteen years; * * *."
Then by L. 1919, c. 93, p. 206, the word "conclusively" was added to establish the presumption as irrebuttable and not dependent upon a showing of actual contribution to the support of the dependent. Bower v. Metal Compounds Corp., 121 N.J.L. 421, 3 A. 2 d 164 (Sup. Ct. 1938), affirmed 122 N.J.L. 380, 5 A. 2 d 699 (E. & A. 1939); Gliewe v. Mulberry Metal Stamping Works, Inc., 18 N.J. Misc. 461, 14 A. 2 d 58 (C.P.), affirmed 125 N.J.L. 555 (Sup. Ct. 1940).
In L. 1921, c. 85, p. 140 the provision was amended to read substantially as it presently exists with further amendments merely changing the age limits of the children entitled to the presumption and including death by occupational disease among other enumerated causes of ...