Clayton v. Universal Const. Co.

• Decision Date: 22 January 1942
• Docket Number: 16905.
• Citation: 38 N.E.2d 887,110 Ind.App. 322
• Parties: CLAYTON v. UNIVERSAL CONST. CO.
• Court: Indiana Appellate Court

38 N.E.2d 887

110 Ind.App. 322

CLAYTON v. UNIVERSAL CONST. CO.

No. 16905.

Appellate Court of Indiana, in Banc.

January 22, 1942

E A. Heffner, of Indianapolis, for appellant.

Cooper Royse, Gambill & Crawford, of Terre Haute, for appellee.

BEDWELL Presiding Judge.

The appellant, Catherine Clayton, has appealed from an award of the full Industrial Board denying her compensation as the widow of Herbert Clayton, deceased.

Herbert Clayton died on October 4, 1940, as a result of an accident that arose out of and in the course of his employment by the appellee, Universal Construction Company. At the time of his death he was living with the appellant, and on October 30 1940, she, with Chris Clayton and Maude Clayton, the father and mother of the deceased employee, filed with the Industrial Board their application for adjustment of their claim for compensation as his dependents. The appellant claimed therein that she was his wife and that she was wholly dependent, while the father and mother claimed to be partially dependent.

At the trial of the cause before a member of the Industrial Board the father and mother of the deceased employee dismissed their application as far as it applied to them, and the hearing member found for the appellant, and, "that she was the common law wife of the said decedent, Herbert Clayton, and was for some time prior to the 4th day of October, 1940, and on the 4th day of October, 1940, living with the said decedent as his common law wife; that said plaintiff was wholly dependent upon said decedent for her support."

The appellee filed its application to review the award rendered by the hearing member upon such finding, and on October 4, 1941, the full Industrial Board made its finding and award by which it found against the appellant and "that neither at the time of the accidental injury nor death of the said Herbert Clayton, nor at any other time, was she the wife of the said Herbert Clayton, and that at his accidental injury and death she was neither his common law wife or his wife in any sense, and that she was not wholly dependent upon the said Herbert Clayton at the time of his said accidental injury and death for her maintenance and support." Upon such finding the full Industrial Board rendered an award that the appellant take nothing and that she pay the costs of the proceedings. From such award of the full Industrial Board she has appealed and assigned, "that the award of the full Industrial Board is contrary to law."

At the trial of the cause before the hearing member of the Industrial Board every material fact necessary to a legal award in favor of the appellant was stipulated, except the fact of dependency, and the sole question before us for determination is whether there exists in the record some competent evidence to sustain the finding of the full Industrial Board.

In the case of Seymour Woolen Mills v. Ward, 1934, 100 Ind.App. 108, 192 N.E. 892, 893, this court stated the applicable rule governing the determination of the question here presented in the following language:

"This court will not weigh the evidence in an appeal from the full Industrial Board and the facts, as found by such board, are binding upon this court, and it is only where there is absolutely no evidence to sustain some necessary fact, upon which the award is based, that the award will be set aside. It is within the office of such board to determine the facts of the case from the evidence and from such facts draw reasonable inferences, and 'where it draws such an inference from the facts and circumstances which in their nature are such that reasonable men might draw either the same or opposite inferences, this court cannot say that the fact found as a result of such inference is not sustained by sufficient evidence,' and, therefore, is contrary to law. Haskell & Barker Car Co. v. Brown, 1917, 67 Ind.App. 178, 184, 117 N.E. 555. "

In the recent case of Schilling v. Parsons, Oct. 22, 1941, Ind.App., 36 N.E.2d 958, 960, this court carefully considered the question of the proof that was necessary to establish a common law marriage, and in the course of its opinion it says:

"From the language above quoted it is quite clear to this court that a common law marriage to be valid is something more than a mere contract. The contract must be acted upon by the parties, resulting in a marriage status between the man and woman so contracting. Proof of this status varies, depending on the form of the marriage agreement. If the contract is in writing, signed by the parties, or if oral and witnessed, followed by cohabitation of the parties the marital status is sufficiently established. But where the contract between the parties is oral but not witnessed, even though followed by cohabitation, an additional factor is necessary to establish a common law marriage. Under such circumstances there must be a holding out by the parties of their marriage status to at least such part of the public in the community in which they live as is made up of their acquaintances, neighbors and relatives."

The appellant, as a witness in her own behalf, testified that she first met the decedent, Herbert...