Cook v. CAROLINA FREIGHT CARRIERS CORPORATION

• Decision Date: 28 April 1969
• Docket Number: Civ. A. No. 3390.
• Citation: 299 F. Supp. 192
• Parties: Betty Lou COOK, Plaintiff, v. CAROLINA FREIGHT CARRIERS CORPORATION, a corporation of the State of North Carolina, and Henry Schronce, Jr., Defendants.
• Court: U.S. District Court — District of Delaware

299 F. Supp. 192

Betty Lou COOK, Plaintiff, v. CAROLINA FREIGHT CARRIERS CORPORATION, a corporation of the State of North Carolina, and Henry Schronce, Jr., Defendants.

Civ. A. No. 3390.

United States District Court D. Delaware.

April 28, 1969.

Sheldon N. Sandler, Wilmington, Del., for plaintiff.

Warren B. Burt, Wilmington, Del., for defendants.

OPINION

STEEL, District Judge.

On November 1, 1966, Albert A. Cook, the alleged common-law husband of the plaintiff, Betty Lou Cook, died as a result of being struck in Delaware by a tractor-trailer owned by the corporate defandant, Carolina Freight Carriers Corp., and operated by the individual defendant, Henry Schronce, Jr. Thereafter, plaintiff, claiming to be the "widow" of the decedent, Albert A. Cook, filed an action under 10 Del.C. § 3704(b) against defendants based upon their alleged negligence. 10 Del.C. § 3704(b) provides:

"Whenever death is occasioned by unlawful violence or negligence, and no suit is brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there is no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned."

Defendants have filed an answer in which the second affirmative defense alleges that plaintiff is not the legal widow of the decedent and hence has no right of action under 10 Del.C. § 3704. This same defense is asserted by defendants as grounds for a motion for summary judgment. Interrogatories to all parties have been answered and the deposition of the plaintiff has been taken on behalf of the defendants. No genuine issue of relevant fact exists, the sole question being whether plaintiff is the "widow" of decedent within the meaning of 10 Del.C. § 3704(b).

Jurisdiction exists by reason of diversity of citizenship and an amount in controversy in excess of $10,000, exclusive of interest and costs.

The pertinent facts are as follows:

Plaintiff was first ceremonially married to the decedent, Albert A. Cook, in Kentucky in 1945. Five children were born of this marriage. Early in 1962 a divorce dissolving the bonds of matrimony was obtained. A few months later the plaintiff and Cook "went back together." Decedent moved into the residence occupied by plaintiff and the five children. When plaintiff and decedent were reunited in West Virginia they intended to take each other back as husband and wife, talked about it in those terms, mutually consented to so consider themselves, and held themselves out as such.

Two months after their resumption of relations as husband and wife in West Virginia, plaintiff and decedent moved with the children to Florida, where they continued to cohabit and consider themselves man and wife. So far as they were concerned the common-law remarriage in West Virginia continued in effect.¹ Plaintiff testified (Deposition 37-38) as to the nature of the understanding between her and decedent when they moved to Florida:

"Q. And it was at that time in West Virginia that you and he entered into the understanding that you were man and wife and treated each other in that fashion?

A. Yes.

Q. And you considered yourselves for all purposes man and wife? As of that time?

A. Right.

Q. Then in accordance with that when you moved down here to Florida, of course, you continued to assume that you had been married and were continuing your relationship of man and wife and everything was the same as it had been established in West Virginia?

A. Right."

Except for a three or four week visit to West Virginia, plaintiff and decedent continued to reside and cohabit in Florida until decedent's death in 1966.

The words and actions of plaintiff and decedent in West Virginia constituted a common-law marriage under the law of West Virginia. Luther v. Luther, 119 W.Va. 619, 195 S.E. 594, 595 (1938), a fact which defendants concede.² Under the law of West Virginia a common-law marriage is recognized as a marriage, but is deemed null and void and of no effect as between the husband and wife. If a common-law marriage is proven the children of such marriage are deemed legitimate. Luther v. Luther, supra; Kester v. Kester, 106 W.Va. 615, 146 S.E. 625, 626 (1929).

Florida recognizes common-law marriages to be valid. Florida also does so where the parties move to Florida even though the marriage relationship originated in a state which refused to recognize common-law marriages. Navarro, Inc. v. Baker, 54 So.2d 59 (Supreme Ct. Fla.1951).

The parties agree that although Delaware does not recognize as valid common-law marriages contracted in Delaware, it will recognize as valid a common-law marriage contracted in a state where its validity is recognized.³ Anonymous v. Anonymous, 7 Terry 458, 85 A.2d 706, 715 (Super.Ct.Del.1951) aff'd sub nom. DuPont v. DuPont, 8 Terry 231, 90 A.2d 468 (Supreme Ct.Del.1952), cert. denied, 344 U.S. 836, 73 S.Ct. 46, 97 L.Ed. 651 (1952); Petras v. Petras, 7 Boyce 290, 105 A. 835, 836 (Super.Ct.Del.1919).⁴

In the instant case defendants make two arguments against the validity of the marriage: (1) since the marriage was invalid in West Virginia where the common-law marriage relationship arose, that law, rather than Florida law, is dispositive against the plaintiff's contention that she is the widow of decedent, and (2) even under Florida law the marriage was not valid since the record allegedly shows no "present mutual assent" in Florida to the contract, present mutual assent being a prerequisite to the validity of the marriage under Florida law. In re Klinger's Estate, 73 So.2d 50 (Fla.Supreme Ct. 1954).

The second contention is conclusively answered by Navarro, Inc. v. Baker, 54 So.2d 59 (Supreme Ct.Fla.1951). There, a common-law marriage had its inception and consummation in Connecticut, a state which failed to recognize such a union. Later the parties returned to Florida, where they had been living prior to an earlier divorce. In asserting the invalidity of the common-law marriage in Florida it was contended that there had been no agreement per verba de praesenti. The Court rejected the argument. It stated that when the circumstances of the reunion of the parties when considered together with their testimony of their subsequent cohabitation and repute, the trial court committed no error in concluding that there had been an agreement per verba de praesenti. It said (54 So.2d at 60);

"True, no positive statements were exchanged when they agreed to resume relation of husband and wife, but the circumstances surrounding their meeting were more eloquent and forceful than formal language."

In conclusion the Court said (id.):

"The final question presents the effect upon the validity of the marriage of its having been incepted and consummated in a state where such unions are not recognized. Our view is that this was no impediment to the marriage relationship after the parties had returned to Florida and continued to live here openly as man and wife. Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865."

In the case at bar the parties have agreed that the plaintiff and decedent entered into a common-law marriage in West Virginia and that when they moved to Florida they considered themselves man and wife, continued to cohabit, and so far as they were concerned the common-law marriage in West Virginia continued in effect. Under this agreed state of fact no basis exists for defendants to contend that the record fails to disclose a "present mutual assent" in Florida to the marital contract. So far as Florida law is concerned the plaintiff and decedent had the status of a common-law husband and wife.

The final question involved is whether West Virginia law which fails to recognize a common-law marriage, or Florida law under which such a marriage is valid, should be followed in Delaware.

A Federal District Court sitting in a diversity case is bound to follow the conflict of laws rule of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

It has been pointed out previously that Delaware Courts held in Anonymous v. Anonymous, supra, and Petras v. Petras, supra, that the law of the place where a common-law marriage was entered into will determine its validity in Delaware. But neither of the cited cases involved situations like the current one.

When circumstances exist like those at bar, the authorities generally hold that although initially an impediment exists to the recognition of a common-law marriage under the laws where it was entered into, that impediment will be lifted and the marriage recognized when the parties move into a state where such a marriage is deemed to be valid. 55 C.J.S., Marriage § 36; 35 Am.Jur., Marriage § 227. In Sturm v. Sturm, 111 N.J.Eq. 579, 163 A. 5 (Ch.N.J.1932), a marriage performed in Galicia was defective under its laws because of the failure to publish banns and to properly record the event. Later the parties became domiciled in New Jersey. The events which had taken place in Galicia plus the transfer of the domicile of the parties to New Jersey, a state which recognized a common-law marriage, while the parties continued to maintain consenting minds with respect to their marriage status, was held to result in a valid common-law marriage. The Court said (163 A. at 10):

"Hence, by the undisputed evidence, a contract of marriage existed when the matrimonial domicile was transferred to New Jersey. If the marriage was void in Galicia, it became valid as a continuing contract upon the transfer of the domicile to this state, the fact of continuing consent having been proved. Chamberlain v. Chamberlain, 68 N.J.Eq. 736, 62 A. 680, 3 L.R.A. (N.S.) 244, 111 Am.St.Rep. 658, 6 Ann. Cas. 483."

* * * * * *

"The change of matrimonial domicile to a jurisdiction in which common-law marriages are deemed valid removed the impediment which previously existed."

The problem...