Beecham v. Greenlease Motor Co. et al.

• Decision Date: 16 February 1931
• Docket Number: No. 17104.,17104.
• Citation: 38 S.W.2d 535
• Parties: FLORENCE BEECHAM, RESPONDENT, v. GREENLEASE MOTOR COMPANY ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

38 S.W.2d 535

FLORENCE BEECHAM, RESPONDENT, v. GREENLEASE MOTOR COMPANY ET AL., APPELLANTS.

No. 17104.

Kansas City Court of Appeals. Missouri.

February 16, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

REVERSED.

J. Frances O'Sullivan and Joseph H. Brady for respondent.

Maurice J. O'Sullivan and N.E. Snyder of counsel.

James H. Parsons and Mosman, Rogers & Buzard for appellants.

CAMPBELL, C.

This action is based upon the Workmen's Compensation Act.

On September 7, 1928, plaintiff, as claimant, filed a claim with the Workmen's Compensation Commission in which it is stated that Roy Beecham was an employee of the defendant Greenlease (Cadillac) Motor Company; that said employee, on June 4, 1928, met with an accident arising out of and in the course of his employment, from which he died nine days later; that the name of the insurer is United States Automobile Insurance Exchange; that she was the wife of the employee, at the time of injury, and that she was wholly dependent upon him for support.

The claim was heard before a commissioner who, on January 18, 1929, made an award therein in which it is stated that said commissioner found in favor of the defendants and against the plaintiff, and awarded no compensation for the accident, and that the evidence is not sufficient to support a finding that there was any dependency upon the deceased. That award was reviewed by the entire commission which made an award in favor of the defendants, against plaintiff, and affirmed the award of January 18, 1929. From that award the plaintiff appealed to the circuit court where the same was heard on the 5th day of March, 1930, at which time that court made findings of fact based upon the evidence transmitted to it by the commission, and rendered judgment against the defendants and in favor of plaintiff in the sum of $4584.

At the hearing before the commissioner the plaintiff testified that she and the employee were married to each other at St. Joseph, Missouri, on June 9, 1917, and that they continued to live together until the year 1921, at which time she went on a visit to Gary, Indiana; that her husband intended to go to Gary but did not do so; that after the lapse of about one year she returned to St. Joseph for a visit; that during her absence the employee sent her money from time to time; that the employee, after she went to Gary, lived with his mother in St. Joseph for a time and in 1926 moved to Kansas City; that in January, 1927, she received a letter from the employee in which it is stated he was convinced that she did not care for him and he intended to give her up; that in May, 1927, while passing through Kansas City, she called the employee over the telephone and he, at that time, said to her, "yes, he had got the divorce in March." She further said that others had told her that the employee had obtained a divorce; that on the 28th day of June, 1927, she went with one Waddell Pendleton to Chicago and made application for a marriage license; that the license was issued and thereafter, on the same day, she and Pendleton were married to each other.

In the application it is stated that plaintiff is twenty-eight years of age, name Miss Florence Beauchamp, and that she is single and unmarried. To this application, which is verified, plaintiff signed the name Florence Beauchamp. When asked why she used that name she said: "I had no reason for it." Thereafter the parties to the contract lived together as husband and wife until after the death of the employee, at which time they separated and have since remained apart.

Plaintiff further testified that she met Pendleton some years before the marriage while attending a dance in Chicago; that she engaged to marry him a week or two before the marriage; that she had been keeping company with him for about one year before the marriage; that Pendleton lived in Chicago, she in Gary, at which place he visited her.

"Q. Kind of sweethearts, weren't you? A. I guess that's what you would call it." ... He was my company for a year before I married him."

Plaintiff further testified that during the time she was in Gary she worked in a lawyer's office and was commissioned as a notary public in the name of Beecham. She gave no evidence tending to show any cause for living apart from her husband.

Plaintiff proceeds upon the theory that the employee had not obtained a divorce, and there is evidence to that effect. It was the peculiar province of the commission to determine the facts. The plaintiff admitted a bigamous marriage and sought to justify the same on the ground that the employee had, about one month before she contracted such marriage, told her in a 'phone conversation that he had obtained a divorce. The value of her explanation was solely for the commission. In addition to the foregoing plaintiff testified that for about a year before the bigamous marriage she had a sweetheart in the person of the other party to the last named marriage. She gave no reason for leaving or deserting, if she did desert the employee, nor reason that would justify her in living apart from him.

It is provided in section 21 of the Compensation Act that the word dependent, as used therein, shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon the wages of the employee at the time of the injury, and that among persons who shall be conclusively presumed to be totally dependent is "a wife upon a husband legally liable for her support." It is thus apparent that the mere fact that plaintiff was the wife of the employee is not...