Bohlen-Huse Coal & Ice Co. v. McDaniel

• Decision Date: 19 January 1924
• Citation: 257 S.W. 848,148 Tenn. 628
• Parties: BOHLEN-HUSE COAL & ICE CO. v. MCDANIEL.
• Court: Tennessee Supreme Court

257 S.W. 848

148 Tenn. 628

BOHLEN-HUSE COAL & ICE CO. v. MCDANIEL.

Supreme Court of Tennessee.

January 19, 1924

Error to Circuit Court, Shelby County; H. B. Pittman, Judge.

Proceeding by Mose McDaniel, under the Workmen's Compensation Act for compensation for the death of Sylvester McDaniel employee, opposed by the Bohlen-Huse Coal & Ice Company employer. From an award of compensation, the employer brings error. Modified, affirmed, and remanded.

John Exby, of Memphis, for plaintiff in error.

Dan F Elliott, of Memphis, for defendant in error.

GREEN C.J.

This is a proceeding under the Workmen's Compensation Act, chapter 123 of the Acts of 1919, by the father of Sylvester McDaniel, to recover the statutory allowance for the death of his son which occurred while the latter was in the employ of the plaintiff in error. During the progress of the trial, leave was asked to amend the petition so as to recover for the benefit of Bertha McDaniel, a sister of the deceased, which permission it appears from the findings of the court, and certainly from the judgment herein was granted, although there is no separate order allowing the amendment. In the notice of the accident, Bertha McDaniel was named as a beneficiary of the claim and proof as to her dependency was offered on the trial without objection. Proceedings under the compensation statute are to some extent informal, and we think the failure to name Bertha McDaniel as a party plaintiff in the petition filed was cured by other matters mentioned.

The chief contention of the employer is based on the fact that Sylvester McDaniel was an illegitimate son of Mose McDaniel, and it is urged the latter is entitled to no recovery for this reason. The same contention is made with reference to Bertha McDaniel, who is also an illegitimate child of Mose McDaniel, she and the deceased, however, having the same father and mother.

The proof shows that Mose McDaniel and the mother of Sylvester McDaniel lived together as man and wife for 25 years, although without any marriage ceremony. The couple reared several children, occupied the same home, and, in fact, seemed to have exemplified a perfect common-law marriage.

The woman died a few months before Sylvester was killed. She is referred to in the record by Mose McDaniel, and by counsel for both parties repeatedly, as McDaniel's "wife," and was evidently so treated and regarded.

While our cases do not recognize the validity of a common-law marriage, nevertheless the doctrine of estoppel is applied to the rights of interested parties, and, for all civil purposes, it seems that much the same effect is given to such alliances, as though valid in law.

This court long since held that where a man and woman had lived together as man and wife, and held themselves out as such, for many years, neither would be permitted to deny that such relation existed between them. The court said:

"Upon established principles, and analogies of the law, we think it may be held that, under the circumstances of this case, a lawful marriage, for all civil purposes, will be conclusively presumed; and that neither the parties themselves, nor third persons, perhaps, will be heard to disprove or deny the marriage." Johnson v. Johnson, 41 Tenn. (1 Cold.) 626.

This case was followed and expressly approved in Smith v. Bank, 115 Tenn. 12, 89 S.W. 392. After the parties had lived together for 25 years as man and wife, the administrator of the husband was held to be estopped to deny the right of the woman to participate in her husband's estate as widow and distributee.

In Gamble v. Rucker, 124 Tenn. 415, 137 S.W. 499, a marriage was presumed valid, although the court found there was an earlier legal marriage, and the former wife was living when the second marriage was solemnized, because the proof did not overturn the presumption indulged that the first marriage had been dissolved by divorce. The children of this second marriage were held to be legal heirs of the father and entitled to share in his estate with the children of the first marriage. This, as noted, was a controversy between two sets of heirs asserting conflicting rights of inheritance.

"It is a familiar doctrine that in all cases, except prosecutions for bigamy and actions for criminal conversation, a marriage may be presumed, or be established by reputation after a lapse of many years. Ewell v. State, 6 Yerg. 364, Rogers v. Park's Lessees, 4 Humph. 480." Smith v. Bank, supra.

Such presumption should have particular force when, as said by Judge Turley, the question of the legality of a marriage "arises incidentally, the controversy not being between persons claiming under conflicting rights of heirship." Rogers v. Park's Lessees, 4 Humph. 480.

We conclude, therefore, that upon our authorities and the facts of this case the plaintiff in error cannot be permitted to deny that a valid marriage subsisted between Mose McDaniel and the mother of the deceased, in this case where the question is purely incidental.

So far as the right of Bertha McDaniel to recover is concerned, we think there is no room at all for resisting her claim upon the grounds stated. Inasmuch as she and deceased had the same mother, she could inherit from deceased under the statute. Thompson's Shannon's Code, § 4166. That is to say Bertha is ...