Sloss-Sheffield Steel & Iron Co. v. Watford

• Decision Date: 03 February 1944
• Docket Number: 6 Div. 208.
• Citation: 17 So.2d 166,245 Ala. 425
• Court: Alabama Supreme Court
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. WATFORD

17 So.2d 166

245 Ala. 425

SLOSS-SHEFFIELD STEEL & IRON CO. v. WATFORD

6 Div. 208.

Supreme Court of Alabama

February 3, 1944

Rehearing Denied March 23, 1944.

Bradley, Baldwin, All & White, of Birmingham for appellant.

Wm B. McCollough, of Birmingham, for appellee.

STAKELY, Justice.

This is an action by Maggie Lee Watford against the Sloss-Sheffield Steel & Iron Company to recover benefits under the Workmen's Compensation Act of Alabama, Code 1940, Tit 26, § 253 et seq., for the death of her alleged husband, Will Watford, on December 1, 1942, by an accident arising out of and in the course of his employment. The trial court awarded compensation to the plaintiff for herself and her children and the case is now here on petition for certiorari.

The sole question in the case is whether Maggie Lee Watford was the lawful wife of Will Watford at the time of his death. They were married in a ceremonial marriage on March 23, 1932. Thereafter they lived together as man and wife and had seven children as a result of the union. This alleged marriage is however, seriously disputed by petitioner and, accordingly, it will be necessary to consider the matrimonial activities of both Maggie Lee Watford and Will Watford prior to their marriage.

"Though a man marries ever so often, he can have but one lawful wife living. So long as she is living, and the marriage bond remains in full force, all his subsequent marriages, whether meretricious or founded in mistake and at the time supposed to be lawful, are utterly null and void." Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813, 814.

We shall consider the matrimonial situation of Maggie Lee Watford and Will Watford separately. In 1922, when Maggie Lee was fifteen to seventeen years of age, she married a man named Allen Washington in the Jefferson County Court of Misdemeanors. She was in court for the purpose of prosecuting him for getting her pregnant. The prosecution ended when Allen Washington procured a license and the marriage ceremony was performed by Judge Abernathy. They had never lived together prior to the marriage and never lived together after the marriage.

In 1923 Allen Washington procured a divorce from Maggie Lee Washington, but she was not given the right by the court to remarry and she never thereafter procured the right to remarry. On the facts stated thus far two applicable principles appear: (1) The marriage of Maggie Lee to Allen Washington was valid even though he married her to escape prosecution for seduction. Newman v. Sigler, 220 Ala. 426, 125 So. 666; Williams v. State, 44 Ala. 24. (2) The subsequent marriage of Maggie Lee to Will Watford was void since no consent to her remarriage had been given by the court. § 23, Title 34, Code of Alabama; Barfield v. Barfield, 139 Ala. 290, 35 So. 884; Gulf States Steel Co. v. Witherspoon, 214 Ala. 529, 108 So. 573; Evans v. Evans, 200 Ala. 329, 76 So. 95.

But the trial court held that it was immaterial that the court never gave its consent to her remarriage, since her marriage to Allen Washington was a nullity. The position of the court was based on its finding of fact that Allen Washington at the time of the events in Judge Abernathy's court was the husband of a woman named Louise by a common-law marriage with her. So we must look to the evidence to see if on any reasonable view of the evidence the conclusion of the court can be sustained. Bell v. Tennessee Coal, Iron & R. Co., supra. On certiorari, we will not weigh the evidence or consider its conflicts. Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46; Malbis Bakery Co. v. Collins, Ala.Sup., 15 So.2d 705.

The record contains evidence tending to show that when Allen Washington went through with the ceremony with Maggie Lee, he was living with a woman named Louise in Kingston, Alabama, as husband and wife under a common-law marriage. Tendencies of the evidence further show that after the ceremony at the court house, he never lived with Maggie Lee, but immediately resumed his relations with Louise.

"In White v. Hill, 176 Ala. 480, 58 So. 444, 447, appears the following definition of a common law marriage: 'To constitute a marriage good and valid at common law--that is, in the absence of a statute otherwise specifically providing--it is not necessary that it should be solemnized in any particular form or with any particular rite or ceremony. All that is required is that there should be an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable in law of making such a contract, consummated by their cohabitation as man and wife or their mutual assumption openly of marital duties and obligations.' " Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485, 487.

But it is insisted by petitioner that there was no proof of an actual and mutual agreement between Allen Washington and Louise to enter into marriage. This is true unless such agreement can be presumed from the evidence. As stated, tendencies of the evidence showed "cohabitation and reputation," for its tendencies showed that they lived together openly as husband and wife at Kingston and that there was public recognition of the marriage. If there was "cohabitation and reputation," the mutual agreement to be man and wife could be inferred therefrom.

"The following quotation from Bishop on Marriage and Divorce, to be found in Topper v. Perry, 197 Mo. 531, 95 S.W. 203, 207, 114 Am.St.Rep. 777, is illustrative: 'Cohabitation and reputation are at best only presumptive proofs, and when one of these foundations is withdrawn, what remains is too weak to build a presumption on. There is good sense in the Scotch law, by which cohabitation alone is considered insufficient, and which required in addition habit and repute, because it is said the parties may eat, live, and sleep together as mistress and keeper without any intention of entering into marriage.' " Gilbreath v. Lewis, 242 Ala. 510, 7 So.2d 485, 487. See also Tartt et al. v. Negus, 127 Ala. 301, 28 So. 713.

It is further contended by petitioner that since it is undisputed that Allen Washington and Maggie Lee went through a marriage ceremony before Judge Abernathy, it will be presumed that this was a valid marriage, even though the evidence was sufficient to show that Allen Washington and Louise had been previously married. This insistence is on the theory that one attacking the validity of a second marriage has the burden of showing that the prior marriage has not been dissolved by divorce. There is no evidence in the record to show that a divorce was not obtained to terminate the marriage of Allen to Louise, assuming that they had been married. The law on which this contention is made is stated as follows: "The presumption is that the prior marriage has been dissolved by divorce, and the burden rests * * * upon the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative." Sloss-Sheffield Steel & Iron Co. v. Alexander, supra [241 Ala. 476, 3 So.2d 48].

But the foregoing rule has its limitations, which are well expressed as follows: " 'However, the presumption of the dissolution of a prior marriage, whether by death or divorce, should be indulged with caution. We apprehend that such presumptions sometimes have been made with very little justification. A rule of law which allows an artificial or technical force to be given evidence, which warrants such presumptions, beyond its natural tendency to convince the mind, and requires courts and juries to presume as true that which probably is false, cannot but be fraught with dangerous consequences. In case there is a conflict of presumptions, it would appear more reasonable that that one should yield which has the least probability to sustain it, rather than that the one in favor of innocence and of the validity of the subsequent marriage should prevail.' 89 Am.St.Rep. 206." Ex parte Young, 211 Ala. 508, 101 So. 51, 52. See also Bell v. Tennessee Coal, Iron & R. Co., supra.

The trial court found that Allen Washington and Louise were living together as man and wife under a common-law marriage at the time of the ceremony at the court house between Allen Washington and Maggie Lee, and that after the ceremony, he never lived with Maggie Lee. On the contrary, Allen Washington returned immediately to living with Louise and continued living with her until 1923 or 1924. Since the trial court found that Allen and Louise did not separate, the court was justified in rejecting a presumption in favor of the validity of the marriage of Allen Washington and Maggie Lee.

"The weight of authority, and the decisions of this court, support the proposition that the presumption of an actual marriage from the fact of continued cohabitation, etc., is rebutted by the subsequent permanent separation, without apparent cause, and the actual marriage soon after of one of the parties." Moore v. Heineke, 119 Ala. 627, 636, 637, 24 So. 374, 378.

"This court has heretofore held that the presumption of an actual marriage from the fact of cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause, and the actual marriage soon after of one of the parties." White v. White, 225 Ala. 155, 158, 142 So. 524, 526. See also McLaughlin v. McLaughlin, 201 Ala. 482, 78 So. 388; Weatherford v. Weatherford, 20 Ala. 548, 56 Am.Dec. 206.

And so under the tendencies of the evidence which the trial court had the right to accept, although at some points the evidence was meager and in conflict with other evidence, we cannot say that the court was not justified in upholding the marriage of Allen Washington and Louise and thereby invalidating the marriage of ...