Clayton Coal Co. v. Industrial Com'n of Colorado

• Decision Date: 03 July 1933
• Docket Number: 13291.
• Citation: 93 Colo. 145,25 P.2d 170
• Parties: CLAYTON COAL CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

25 P.2d 170

93 Colo. 145

CLAYTON COAL CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 13291.

Supreme Court of Colorado, En Banc.

July 3, 1933

Rehearing Denied Sept. 18, 1933.

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Proceeding under the Workmen's Compensation Act by Mary Tsikiris claimant, for the death of her husband, opposed by the Clayton Coal Company, employer, and the Employers' Mutual Insurance Company, insurer. An award of the Industrial Commission granting compensation was affirmed by the district court, and employer and insurer bring error.

Affirmed.

Frank C. West, of Denver, for plaintiffs in error.

Paul P Prosser, Atty. Gen., and M. S. Ginsberg, Asst. Atty. Gen for defendant in error Industrial Commission.

Frank McDonough, Jr., Gilbert L. McDonough, and Clarence L. Bartholic, all of Denver, for defendant in error Tsikiris.

BUTLER Justice.

On August 9, 1932, Mike Tsikiris, an employee of the Clayton Coal Company, received accidental injuries arising out of and in the course of his employment, and died on August 11 as a result of the injuries. The Industrial Commission awarded compensation to Mary Tsikiris as his widow, and the district court affirmed the award.

It is admitted by the plaintiffs in error that, if Mary Tsikiris was the wife of Mike Tsikiris at the time of his death, she is entitled to the compensation awarded to her.

There was no ceremonial marriage, and the plaintiffs contend that the evidence was wholly insufficient to support the finding of the commission that there was a common-law marriage. The law of this state recognizes the validity of common-law marriages. Klipfel's Estate v. Klipfel, 41 Colo. 40, 92 P. 26, 124 Am.St.Rep. 96.

On direct examination, Mary Tsikiris testified that she was the wife of Mike Tsikiris; that she was married to him; that there never was any real ceremony performed; that they intended to get married all along; that they agreed to be husband and wife; that they lived together as such for five years, and were so living together when he died; that her husband (Mike) supported her, paid all of her expenses, furnished all food, and ran accounts for groceries and furniture; that Mike had never been married Before ; that she had been married to one Russell, but was divorced. On cross-examination, she testified that she became Mike's wife in 1927, but did not remember whether it was in the spring, summer, or fall; that they just went together; that they were going to get married, and it seemed they just never got to it; that there never was any later ceremony or agreement after that time; that they kept saying all of the time they were going to get married, but they did not; that they were in Denver when they commenced this relation, but she does not remember what month it was; that there was no particular reason why they did not get married; that he could not read and write, nor could she, and they just put it off; that in 1927 they moved in the camp right at the Clayton, took a house, and furnished it; that Mike bought and paid for the furniture; that they set up a home and lived in the house; that up to the time that Mike died they were living together and intended at some time to get married.

Other witnesses, who were friends, neighbors, and storekeepers and had known Mike and Mary Tsikiris for four or five years next prior to his death, testified that the parties lived together as husband and wife; that Mike introduced her as his wife; that he always referred to her as his wife; that everybody thought they were husband and wife; that they kept accounts at stores and she bought supplies and they were charged to the accounts. One of the witnesses boarded with them for about six months and had known both for about four years. He described in detail the household arrangements and their way of living. Another witness, at whose house they lived for about a month and who had known both for about five years, also described their domestic life.

When Tsikiris lay on his deathbed in the hospital, he made a statement to several witnesses in the presence of Mary Tsikiris. It was written down at his request. She produced it at the hearing. It is a penciled statement, signed with a mark by Tsikiris, and signed by two witnesses. It reads: '8/9/32. Riverside by Brother. 200. American National 17th Lawrence. My personal belonging car and stock goes to my wife, Mary.' Mary Tsikiris and disinterested witnesses testified to the making of the statement.

The witness Morris testified substantially as follows: I saw Mike in the Longmont Hospital after he was hurt. I was there on August 9th. Mr. Tsikiris asked me for a paper and pencil, and said: 'Jack, I will tell you, I am going to die. Bury me in Riverside beside my brother. There is $200 at the bank and get that for my wife. You write that all down. I want everything to go at home.' He could not write, so made his cross, and it was witnessed by Mr. Morris (Mavros) and by me. That is my signature on there. I gave the paper to Mrs. Tsikiris in Mike's presence. He referred to this woman...