Boykin v. State Indus. Acc. Commission

• Decision Date: 28 September 1960
• Parties: Kathleen H. BOYKIN, widow of Jack E. Boykin, deceased, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon, Respondent.
• Court: Oregon Supreme Court

Page 724

355 P.2d 724

224 Or. 76

Kathleen H. BOYKIN, widow of Jack E. Boykin, deceased, Appellant, v. STATE INDUSTRIAL ACCIDENT COMMISSION of the State of Oregon Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Sept. 7, 1960.

Decided Sept. 28, 1960.

Don G. Swink, Portland, argued the cause for appellant. On the briefs were Bailey, Lezak, Swink & Gates, Portland.

George S. Woodworth, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Robert Y. Thornton, Atty. Gen., and Ray H. Lafky, Asst. Atty. Gen.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and KING, JJ.

GOODWIN, Justice.

The plaintiff, who uses the name Kathleen Boykin, appeals from a judgment entered in favor of the defendant State Industrial Accident Commission upon findings and conclusions made by the trial judge sitting without a jury.

The plaintiff had appealed to the circuit court from an administrative order of the Commission denying her widow's benefits under the Workmen's Compensation Act. ORS 656.002 et seq.

The sole question is whether the plaintiff was the widow of one Jack E. Boykin, whose fatal injuries were sustained while he was engaged in employment covered by the act. There were no children born as issue of the relationship.

It is agreed that Kathleen and Jack had lived together continuously for more than ten years without having formalized their relationship by participation in a marriage ceremony. In all respects except for the failure to solemnize the marriage, their relationship resembled a normal marriage.

The plaintiff contends that the trial court erred in failing to find that there was a common-law marriage under the law of Idaho. It is the plaintiff's theory that her uncontradicted testimony was sufficient as a matter of law to require a finding in her favor. She asserts that the facts found by the trial judge to the contrary cannot be sustained on the record.

If there is a conflict in the evidence, or a failure of proof, the findings of fact by the trial judge are entitled to the same weight as would be the verdict of a jury. The defendant Commission put on no testimony. We are obliged, therefore, to study the plaintiff's testimony in detail. If her testimony falls short of the necessary proof to make out a prima facie case of common-law marriage under Idaho law, then the findings of the trial judge are conclusive.

The record showed the following chronology:

In 1941 Kathleen first met Jack in Arizona. Both were married at that time to other parties. There is no evidence of anything but friendship between the two.

In 1944 Kathleen obtained a Nevada divorce from a man named McClure.

In 1947 Jack was divorced by his then wife in the state of Arizona, where he was presumably domiciled. Neither divorce is questioned by the defendant.

In 1947, after Jack's divorce, Kathleen and Jack commenced living together in the state of Arizona, where common-law marriage is not recognized. The arrangement at that time is conceded to have been illicit.

Between 1947 and the latter part of 1949, Kathleen and Jack lived together in the states of Arkansas, Arizona, Nevada, and Utah. None of these four states recognized common-law marriage. In 1951 Kathleen and Jack spent from three to five months in Idaho. Idaho recognizes common-law marriage.

In 1951 Kathleen and Jack filed separate income tax returns for 1950 from the same address in Wallace, Idaho. Both used the name Boykin. Jack listed Kathleen as a spouse. Kathleen left the space blank on her return.

In 1952 Kathleen and Jack filed a joint federal income tax return for 1951 from an address in Portland, Oregon. This tax return revealed that the parties had earned income in the states of Idaho, Montana, Oregon and Utah, during the year 1951. After 1951, Kathleen and Jack lived in Oregon exclusively. All of their known conduct in Oregon is consistent with a valid marriage of ten years' standing.

The plaintiff founds her claim to widowhood on this testimony from the trial:

'* * * Q. Now, Mrs. Boykin, during the period that you lived in Idaho was all of it in Wallace or in the Wallace Area? A. Yes it was.

* * *

* * *

'Q. Now, could you tell us in your own words whether anything occurred while you were living in Idaho that would in any way affect the relationship that you had with Jack? A. Well, there was one evening Jack and I and a friend of ours was setting in the cafe there.

'Q. What was the friend's name? A. Frank Hess. And we were talking about marriages and different things, and he said that Idaho recognized common law marriages, and Jack turned around and looked at me and he says, 'Well,' he said, 'We are married now.' He says 'We have lived here and' he said, 'I guess we are really married.'

'Q. Was there any other conversation between you and Jack at any time subsequent to that or prior to that in Idaho that would have any bearing on this? A. Well, more intimate moments, yes.

'Q. Well, in order for the Court to fully understand the situation between you we are going to have to explain those to the Court, Kay. A. Well, later that night, then, why, as we were getting ready for bed he says, 'Well,' he says, 'it's all legal now.' And I said, 'Well, not only by law' I said, 'it's always been in the eyes of God, too.''

There was evidence that the parties lived together in sickness and in health. At one time Kathleen was in and out of hospitals during a period of nine months, suffering from a serious illness. The testimony was conclusive that the parties held themselves out at all times as man and wife. There was testimony to the effect that they talked about getting married but did not get around to it. There was also testimony by mutual friends who said that they thought the couple was married.

Kathleen and Jack were both free of legal impediment to marriage when they began their informal arrangement in Arizona in 1947. They could have married at any time in any one of the several states in which they lived. They were, of course, free to marry when they entered Idaho.

A relationship recognized as a marriage in another state where it was consummated will be recognized in Oregon even though such a relationship would not be a marriage if the same facts had been relied upon to create a marriage in Oregon. Kelley et al. v. Kelley, 210 Or. 226, 230, 310 P.2d 328; Sturgis v. Sturgis, 51 Or. 10, 16, 93 P. 696, 15 L.R.A.,N.S., 1034, 131 Am.St.Rep. 724. The same rule works in reverse. If the marriage was void where consummated, it remains invalid elsewhere unless affirmative action is taken to cure the defect. Huard v. McTeigh, 113 Or. 279, 287, 232 P. 658, 39 A.L.R. 528.

The Commission contends in the case at bar that there was no marriage at all. The Commission says that the parties were simply living together, wherever their travels took them, and the mere fact that they stopped for a few months in a state which recognizes common-law marriages is insufficient to convert an illicit relationship into a lawful one. The Commission says that the presumption that a thing once proved to exist continues as long as is usual with things of that nature, ORS 41.360(32), applies to illicit relationship. The Commission also contends that the testimony of the plaintiff that she and the deceased were never formally married rebuts the presumption that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. ORS 41.360(30).

The real issue here is whether the plaintiff's testimony concerning events in Idaho constituted sufficient evidence of affirmative conduct to convert a previously illicit affair into a common-law marriage under the laws of that state. She conceded that the affair was at all times illicit until the parties lived as man and wife in Idaho, but she contends that their conduct in Idaho met the requirements of the law of that state.

Rather than merely transporting an illicit affair across a state line, as was done in the case of French v. State Industrial Accident Commission, 156 Or. 443, 68 P.2d 466, the plaintiff contends that she and the deceased satisfied the requirements of mutual assent and mutual assumption of the rights and duties of coverture contained in the statutory law of Idaho. Idaho Code, § 32-201.

Since this court decided the French case in 1937, the Idaho court has had...