Consolidated Underwriters v. Kelly

• Decision Date: 27 March 1929
• Docket Number: (No. 961-5090.)
• Citation: 15 S.W.2d 229
• Parties: CONSOLIDATED UNDERWRITERS v. KELLY et al.
• Court: Texas Supreme Court

15 S.W.2d 229

CONSOLIDATED UNDERWRITERS v. KELLY et al.

(No. 961-5090.)

Commission of Appeals of Texas, Section B.

March 27, 1929.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Proceedings under the Workmen's Compensation Act by Louisa Kelly for the death of her husband, Joe Kelly, opposed by J. T. Ferguson, employer, and the Consolidated Underwriters. Judgment of the district court setting aside an award of the Industrial Accident Board was remanded with instructions by the Court of Civil Appeals (300 S. W. 981), and the insurer brings error. Judgment of Court of Civil Appeals affirmed.

C. A. Lord, of Beaumont, for plaintiff in error.

David E. O'Fiel and Albert Reagan, both of Beaumont, and D. C. Bennett, of Orange, for defendants in error.

SPEER, J.

Louisa Kelly seeks to recover compensation under our Workmen's Compensation Law as the surviving wife of Joe Kelly, the employee, who died from an injury received in the course of his employment. The whole case turns upon the question of whether or not Louisa was the surviving wife of the deceased. Her claim was based upon an alleged common-law marriage to Joe Kelly, and the validity of the claim depends upon the effect of the existence of a prior marriage of Louisa as an impediment to the consummation of the asserted common-law marriage between her and Joe. The trial court instructed a verdict setting aside the award of the Industrial Accident Board and denying the plaintiff's petition for compensation, on the theory that the undisputed evidence showed that she was not the wife of Joe Kelly at the time of his death. The Court of Civil Appeals first reversed and rendered the judgment in favor of the common-law wife, but afterward on rehearing remanded the cause to the trial court with instructions. 300 S. W. 981.

The Court of Civil Appeals found as follows: "In 1920, Joe Kelly had some trouble with appellant's sister, while he was living at Amelia, La. Thereupon he deserted appellant and left Louisiana, and appellant did not hear from him until 1925. At the time Joe Kelly deserted appellant, they were not husband and wife, and as neither of them had previously married, they were single persons in the eyes of the law. A few months after Joe Kelly deserted appellant, she heard that he was dead, and in March, 1920, contracted a ceremonial marriage with one George Brown, under authority of a marriage license duly issued and duly executed, thereby becoming his lawful wife. Recognizing the validity of this marriage, she lived with George Brown at her home in Amelia, La., until 1925, when, learning that Joe Kelly was living in Beaumont, Tex., she deserted her husband and joined Joe Kelly at Beaumont in October, 1925, and lived with him continuously from that date as his wife until his death on the 19th of January, 1926. They resumed their relations with the intention of living together as husband and wife until their death. Joe Kelly introduced her to his Beaumont friends as his wife, and she acknowledged him openly as her husband. They lived and cohabited as husband and wife, and received their friends in their home as such, and their friends recognized them as husband and wife. The relations between Joe and appellant were such that, except for the fact that Louisa had a living husband, the law would have declared their status to be that of a common-law marriage. There is no evidence against that conclusion. But for the fact that...