Bell v. Southern Casualty Co.

• Decision Date: 16 December 1924
• Docket Number: (No. 1154.)
• Citation: 267 S.W. 531
• Parties: BELL v. SOUTHERN CASUALTY CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

267 S.W. 531

BELL v. SOUTHERN CASUALTY CO.^*

(No. 1154.)

Court of Civil Appeals of Texas. Beaumont.

December 16, 1924.

Rehearing Denied January 7, 1925.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Action by the Southern Casualty Company against Martha Bell to set aside award of compensation in defendant's favor, upon claim filed under Workmen's Compensation Act. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A. Lord and Howell & Stephenson, all of Beaumont, for appellant.

Orgain & Carroll, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellee.

HIGHTOWER, C. J.

The appellee, Southern Casualty Company, filed this suit in one of the district courts of Jefferson county against the appellant, Martha Bell, praying for a judgment canceling and setting aside an award made in favor of Martha Bell by the Industrial Accident Board of this state upon a claim filed before that Board by Martha Bell for compensation under the Employers' Liability Act of this state (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246-1 to 5246-91), because of the death of one Tom Bell, who Martha Bell claimed was her husband at the time of his death. Due notice of Martha Bell's claim was given to the Southern Casualty Company, and it denied liability before the Board on the following grounds: (1) That Martha Bell was never the lawful wife of Tom Bell, deceased; and (2) that Tom Bell, at the time of his death, was engaged in the performance of a maritime contract, and that the injuries which resulted in his death were maritime in their nature, and that therefore the Employers' Liability Act of this state, commonly called the Workmen's Compensation Act, had no application to the claim of Martha Bell, and that the Industrial Accident Board was without authority to make any award in her favor.

After the Industrial Accident Board had made its award, as before stated, denying both defenses interposed by the Southern Casualty Company, due and legal notice that it would not abide by the award was given by the appellee, and this suit was filed to set the award aside, in due and proper time.

Martha Bell, in answer to this suit in the district court, interposed a general demurrer and general denial, and pleaded over against the appellee, by way of the usual cross-action, for compensation under the Employers' Liability Act of this state.

A jury was demanded in the case, but upon conclusion of the evidence a verdict was peremptorily instructed in favor of the appellee, and judgment was rendered canceling and setting aside the award made by the Industrial Accident Board in favor of Martha Bell, and further that she take nothing in the district court as against the appellee, adjudging all costs against appellant, and from that judgment this appeal is prosecuted.

The facts, as shown by the record, are as follows: Tom Bell, the deceased, and the appellant, Martha Bell, were married in Jefferson county, Tex., under license duly issued in 1918, and were living together as man and wife at the date of Tom Bell's death, which occurred on August 29, 1923. It is appellee's contention that this marriage was not a lawful marriage, for the reason, as it contends, that the appellant, at the time she attempted to marry Tom Bell, was the common-law wife of one Joseph Cole, from whom she had never been divorced, and that therefore her attempted marriage to Tom Bell, notwithstanding it took the form of a statutory marriage in this state, was illegal.

In connection with this contention, appellee proved the following facts, in substance: That many years ago, when appellant was quite a young girl, between 13 and 15 years of age, she lived and cohabited in the state of Louisana with a man named Joseph Cole, and that this cohabitation continued for some 6 years or more, and that as a result of this cohabitation three children were born to appellant, all of whom were the children of Joseph Cole, and that no divorce was ever had by appellant from Joseph Cole, nor a divorce by him from her. There was neither pleading nor proof by appellee of the law of the state of Louisana relative to common-law marriages in that state, and this court cannot know judicially what constitutes a common-law marriage in the state of Louisana under the law of that state, if, in fact, such a marriage is recognized at all there.

If it were available to appellee to show by proof, in the absence of a pleading, what the law of Louisiana is relative to a common-law marriage, the burden was upon it to establish that defense by proof of such a marriage in the state of Louisiana, and in the absence of proof showing a valid common-law marriage in the state of Louisiana, it cannot maintain its contention here that Tom Bell was never the lawful husband of appellant. In the absence of proof to the contrary, it will be presumed by the courts of this state that the law of Louisiana relating to common-law marriages is the same as that of the state of Texas. While it is true that in this state a common-law marriage, when established, is just as valid and binding as a formal marriage under license, nevertheless there are certain essential elements of a "common-law marriage" that must be established by proof, and these elements are: (1) There must be proof that the man and woman between whom the common-law marriage is sought to be established entered into an agreement between themselves, either express or implied, to take each other for husband and wife during their natural lives; and (2) the proof must show that such agreement was followed by cohabitation and living together professedly as man and wife. If the proof falls short in either of these respects, the claimed common-law marriage is not established in the state of Texas, as ruled by our appellate courts. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011; Berger v. Kirby, Administrator, et al., 105 Tex. 611, 153 S. W. 1130, 51 L. R. A. (N. S.) 182.

Applying this rule, the proof offered by appellee for the purpose of showing a common-law marriage between appellant and Joseph Cole in the state of Louisiana fell short of establishing that relation, because there was no proof in this case to the effect that there was ever any character of agreement between appellant and Joseph Cole to live together as man and wife during their natural lives. True, as we have stated, the proof showed several years of living together and cohabitation, but this is only one of the essential elements of a common-law marriage in this state, and the presumption is, as we have said, that the law of Louisiana is the same as that of Texas, in the absence of proof to the contrary. Nor would the fact that children were born to the parties as a result of their living together and cohabitation in the state of Louisiana dispense with the necessary element of agreement between them to take each other for husband and wife and to live together in that relation during their natural lives. Therefore we must hold against appellee's contention that the proof in this case showed a common-law marriage between appellant and Joseph Cole in the state of Louisiana, which was never severed in any legal way, and that therefore appellant could not be the lawful wife of Tom Bell at the time of his injury and death.

The facts relative to Tom Bell's employment at the time he sustained the injury which resulted in his death are not in dispute, and are as follows: Tom Bell, at the time of his death, was a longshoreman in the employ of C. Flanagan & Sons, Inc., and that concern was engaged in the business of general contracting stevedores. Its business was to load and unload vessels and ships and boats engaged in interstate and foreign commerce. Flanagan & Sons, at the time Tom Bell received the injury which resulted in his death, was carrying with the appellee, Southern Casualty Company, a policy of insurance covering the employees of Flanagan & Sons, in accordance with the Employers' Liability Act of this state. On the morning of August 29, 1923, between 8 and 8:30 o'clock, Tom Bell, as an employee of Flanagan & Sons, was loading a vessel which was docked at the municipal docks of the city of Beaumont and lying upon the water of the Neches river, a navigable stream. The vessel was taking on a cargo of petroleum coke sold by the Magnolia Petroleum Company for transportation and shipment to a port in Germany. At the very time of the injury which resulted in Bell's death, he was standing upon the deck of the vessel in the discharge of his duties under his contract of employment as a stevedore for Flanagan & Sons, and while so engaged in the loading of the vessel a steel sheave block fell from above where he was standing on the boat, and struck Bell on the head, and he died almost instantly. There is no necessity for making a fuller statement of the facts in this connection, all of which are without dispute, and we will now proceed to apply the law as we understand it to these undisputed facts.

It was and is appellee's contention upon the foregoing undisputed facts that Tom Bell, at the time he received the injury which resulted in his death, was engaged in the performance of a contract which was of a maritime nature, and that the injury which resulted in his death...