Campbell v. Nelson

• Decision Date: 29 June 1928
• Docket Number: No. 26627.,26627.
• Citation: 175 Minn. 51,220 N.W. 401
• Parties: CAMPBELL v. NELSON et al.
• Court: Minnesota Supreme Court

220 N.W. 401

175 Minn. 51

CAMPBELL v. NELSON et al.

No. 26627.

Supreme Court of Minnesota.

June 29, 1928.

Certiorari to Industrial Commission.

Certiorari by Elizabeth Campbell to review an order of the Industrial Commission denying relator's petition for compensation for the death of Arthur O. Campbell, opposed by Emil Nelson, sole trader, doing business under the firm name of Peerless Laundry, and wife, and the United States Casualty Company, insurer. Order affirmed.

Leo J. Seifert, of Fairmont, for relator.

G. P. Mahoney, of Minneapolis, for respondents.

HILTON, J.

Certiorari to review an order of the Industrial Commission denying petition of relator, Elizabeth Campbell, for compensation because of the death of Arthur O. Campbell.

Decedent, by occupation a steeple jack, while engaged in painting a smokestack at Fairmont, Minn., on November 6, 1926, fell about 70 feet to the ground, and was instantly killed. Decedent and relator had been for more than 6 years residents of Omaha, Neb., and neither had ever resided in the state of Minnesota. The referee found, and the commission by its order approved the findings, that the accident which resulted in death arose out of and in the course of decedent's employment, and that on the date thereof relator was not the lawful wife of Arthur O. Campbell, deceased. The only question here involved is as to the correctness of the latter finding.

Relator testified that in Omaha, Neb., she and decedent became engaged and agreed to be married; that they drove to Kansas City, Mo., for that purpose on October 17, 1922, and were there married on that day by a justice of the peace named Flynn, upon a license duly issued; that they lived together in Omaha as husband and wife until his death. There was other evidence to the effect that they had been apparently living together as husband and wife, and that each had stated to others that they were such. Relator testified that Campbell secured the license in Kansas City, but she afterwards stated that she gave her own name in getting the marriage license. She further testified that she had the marriage certificate in Omaha in her trunk, and would produce it, but gave as a reason for failing later to produce it that it had been stolen from their car.

At Fairmont, Minn., on April 13, 1927, at the hearing before the referee, relator, while being examined by her own attorney, testified to the claimed Kansas City marriage, and then as follows:

"Q. Had you been previously married? A. No, sir.

"Q. You had never been married prior to that time? A. No, sir."

On May 19, 1927, in a deposition, after again testifying to the claimed Kansas City marriage, she testified as follows:

"Q. You had never been married before? A. No, sir.

"Q. You weren't a widow or divorced? A. I was single."

The facts, later developed, conclusively showed that she was married in Windsor, Ontario, to one Wilkinson in 1898; that a ceremonial marriage was entered into in 1910 between relator and one Baldwin at Omaha, Neb. She secured a divorce from him in 1921. After it developed that there had been no such marriage license issued, and that no justice of the peace by the name of Flynn ever lived in Kansas City, relator changed her position, and relied upon a claimed common-law marriage.

In 1901, while living at Chicago, Ill., relator left her husband, Wilkinson, by whom she had had one or more children, and has never seen him since. She admitted that she did not know whether he was dead or alive, but said that she had been told by some one that he had secured a divorce and was married again. No papers in any divorce proceeding had ever been served upon her, nor had she ever made any effort to ascertain whether he was still alive or whether any divorce had been granted.

1. The findings of the Industrial Commission must remain undisturbed, if there is evidence reasonably tending to sustain them, or unless they are manifestly and clearly contrary to the evidence. Such has been the uniform holding of this court. If reasonable minds might reach opposite conclusions after a fair consideration of all the evidence and the proper inferences to be drawn therefrom, then a reasonable conclusion arrived at by the commission must be adhered to. When a question of fact arises, the findings of the commission must be sustained, unless a fair consideration of the evidence and the reasonable and fair inferences to be drawn therefrom will require reasonable minds to reach an opposite conclusion. The commission is not necessarily concluded by undisputed testimony, but it must assume as true the positive, unimpeached testimony of credible witnesses, unless the same is inherently improbable, or rendered so by facts and circumstances disclosed at the hearing. If the testimony of an unimpeached witness is so improbable or contains so many contradictions as to furnish substantial reasons for believing it to be false, such testimony may be disregarded. Babich v. Oliver Iron Mining Co., 157 Minn. 122, 124, 195 N. W. 784, 202 N. W. 904; Klare v. Peterson, 161 Minn. 16, 200 N. W. 817; Smith v. Mason Bros., 174 Minn. ___, 218 N. W. 243; Dunnell's Dig. (2d Ed.) § 411, § 10344a.

2. Under the evidence in this case, the commission might well have found that there was no common-law marriage. The testimony of relator, being false when she swore she had never been married, the proven fact that no marriage license had been issued for the claimed Kansas City marriage, and that no such magistrate as Flynn ever lived there, as well as other improbable circumstances, more than justified the commission in determining that she was not a credible witness. Not believing her testimony as to these very important and vital matters, the commission had a right to disbelieve her statement as to a claimed arrangement and agreement made in Omaha in ...