Alto v. State Industrial Accident Commission

• Decision Date: 01 June 1926
• Citation: 118 Or. 231,246 P. 359
• Parties: ALTO v. STATE INDUSTRIAL ACCIDENT COMMISSION ET AL.
• Court: Oregon Supreme Court

246 P. 359

118 Or. 231

ALTO v. STATE INDUSTRIAL ACCIDENT COMMISSION ET AL.

Supreme Court of Oregon

June 1, 1926

Department No 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Hilda Jukkala Alto, claimant, for the death of her husband, Herman Alto, in which compensation was allowed. The Industrial Accident Commission suspended payments, and rejected the claim, and the claimant appealed to the circuit court. From a judgment referring the claim to the Commission, with instructions favorable to the claimant, the Commission appeals. Affirmed.

Miles H. McKey, Asst. Atty. Gen. (I. H. Van Winkle Atty. Gen., on the brief), for appellants.

E. M Page, of Salem (McNary, McNary & Keyes, of Salem, on the brief), for respondent.

BURNETT J.

The claimant, Hilda Jukkala Alto, was originally allowed compensation for the death of her husband in an industrial accident case, and was paid a total of $207.01 on the installment plan provided by the statute, but afterwards the commission suspended the payments and rejected her claim. Being a resident of Marion county of this state, she appealed to the circuit court of that county, where the matter was tried upon a stipulation of facts, in which were cited the official character of the State Industrial Accident Commission, the death of Herman Alto, the decedent, while in the employment of the Murphy Timber Company of Banks, in this state, both he and his employer being subject to the Workmen's Compensation Act (Or. L. § 6605 et seq.), and entitled to the benefits thereof; that the present claimant duly filed with the Accident Commission her claim for compensation as the widow and as the mother of the three stepchildren of the decedent. The stipulation then recites the payment to her of certain amounts, aggregating $207.01, and that afterwards, on June 26, 1924, the commission entered an order canceling the award, and rejected the claim of the plaintiff, whereupon she appealed to the circuit court of Marion county, that of her residence. The concluding paragraphs of the stipulation are as follows:

"Eighth. That said deceased, Herman Alto, was, on the 7th day of November, 1905, duly and regularly married to Velhelmina Lieniatainen at Kartesjarvi, Finland, and that said Velhelmina Lieniatainen is now, and has been continuously since said date, a resident and inhabitant of Finland.

"Ninth. That thereafter, and on the 6th day of July 1906, said deceased, Herman Alto, departed from Finland for the United States of America, and arrived in the United States soon thereafter, and from his arrival to the date of his death, June 21, 1922, was at all times within the confines of the United States of America, and did not see the said Velhelmina Lieniatainen after his departure from Finland.

"Tenth. That thereafter, and on the 6th day of July 1913, said Velhelmina Lieniatainen became the mother of an illegitimate child, to wit, a son.

"Eleventh. That on the 21st day of January, 1920, the said deceased, Herman Alto, and the plaintiff herein, Hilda J. Alto, were intermarried at Leadville, Lake county, Colo., and that no divorce or annulment of said marriage contract has ever been had.

"Twelfth. That at the time of the death of said Herman Alto the plaintiff was the mother of the following children under 16 years of age: William Jukkala, born October 21, 1917; Edwin Jukkala, born April 25, 1912; Illa Jukkala, born June 17, 1908; who were and now are in her care and custody.

"Thirteenth. That the plaintiff herein has not remarried since the death of said Herman Alto.

"Fourteenth. That on the 23d day of August, 1924, and for some time prior thereto, the plaintiff was, and now is, a resident of Marion county, Or."

The judgment of the court, after hearing on this stipulation, was to the effect that the claim be referred to the commission, with instructions to fix the plaintiff's compensation for the death of Alto in accordance with the findings of the court, and that, since the 21st day of June, 1922, the claimant was the lawful widow of the decedent, and has had, and now has, in her custody three stepchildren of the decedent.

The Industrial Accident Commission has appealed to this court. The stipulation is in effect a special verdict. Alsos v. Kendall, 111 Or. 359, 364, 227 P. 286. The question is whether the right conclusion of law was drawn from that verdict and embodied in the judgment of the circuit court. In another form, the question is which of the two marriages mentioned in the stipulation is the effective one, and to which so-called widow must the compensation be paid. Succinctly stated, the situation is this: The deceased employee married the Finland woman November 7, 1905. On the following July 6, 1906, he left Finland for the United States, where he resided continuously until the date of his death, June 21, 1922. On January 21, 1920, more than 13 years after his arrival in this country, he married the claimant at Leadville, Colo. The latter has not married again since the death of the employee, and there was no divorce or annulment of the marriage contract between the claimant and the decedent. As between the two marriages, where the question is as to their validity and precedence, the principle is thus stated:

"Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or by lawful separation." Brokeshoulder v. Brokeshoulder, 84 Okl. 249, 204 P. 284, 34 A. L. R. 441, and notes.

The question in this case is the validity of the Colorado marriage. The Industrial Accident Commission assails the Colorado marriage on the ground that there was already an existing marriage between the decedent and the Finland woman. Under the rule above announced, the burden rests upon the Industrial Accident Commission not only to prove that the marriage occurred in Finland, but also to show that the parties to it were competent to enter into it, and lastly, that there had been no divorce or other dissolution of that marriage. The mere assertion that there had been a marriage in Finland does not meet the requirements of the precedents on this subject. A great wealth of citations holding this principle is attached to the case of Brokeshoulder v. Brokeshoulder, supra, where there are four pages of citations in the notes supporting the principle. The doctrine is founded on the...