Day v. Day
| Decision Date | 02 March 1950 |
| Docket Number | 16322. |
| Parties | DAY v. DAY et al. |
| Court | South Carolina Supreme Court |
Charles & Charles, Greenwood, for appellant.
Nicholson & Nicholson, Greenwood, for respondents.
James Day was accidentally killed in Greenwood County on November 20, 1948 while working as an employee of Greenwood Mills. His death arose out of and in the course of his employment which was subject to the provisions of the Workmen's Compensation Act, Section 7035-1 et seq. of the Code. His alleged widow the appellant, Maggie Lee Day, filed her claim with the Commission claiming compensation as his widow, and, in the alternative, as a dependent. The opposing parties are the father, the brothers and the sister of James Day, who are his next of kin. All of the claimants are negroes.
Greenwood Mills employer of James Day and self-insurer, admits that he was killed in the course of his employment, and agrees to pay death benefits under the provisions of the Workmen's Compensation Act, subject to a judicial determination of the parties entitled thereto.
On March 22, 1949 the Industrial Commission awarded compensation to Maggie Lee Day as a dependent of James Day, payable weekly, together with funeral expenses,--the total amount payable under the award not to exceed Six Thousand Dollars. Upon appeal to the circuit court, the finding and award of the Commission was reversed. The Court held that Maggie Lee Day was not a lawful dependent of James Day, and ordered that payment be made to the respondents as next of kin in accordance with Code Section 7035-43, which provides: 'If a deceased employee leaves no dependents, the employer shall pay to the next of kin as herein defined the commuted amount provided for in § 7035-41 for whole dependents, less burial expenses.'
The facts giving rise to the controversy are substantially as follows: Maggie Lee Day married Marion Duncan on February 4, 1919. After the marriage they resided in the Callison section of Greenwood County, living together as man and wife. Within two or three years they separated; the record does not give any cause for the separation. At the time of their marriage, Maggie Lee was fourteen or fifteen years old, and her husband, Marion Duncan, was about eighteen. They had no children. After their separation, the appellant moved to Greenville, but returned to Greenwood on a visit after about two years, at which time she saw Marion Duncan, who told her that he had married again. She testified that as a result of this information, she received the impression that he was no longer her husband.
It is clearly evident from appellant's testimony that following the conversation with her husband, she believed that she had the moral and legal right to marry again. This conversation with Marion Duncan took place in 1923. She returned to Greenville and lived there for six years, returning in 1930 to Greenwood, where she continued to live. On November 3, 1934, making no inquiry with reference to her husband, Marion Duncan, and making no effort to locate him, or to discover whether he were dead or alive, the appellant married James Day, the decedent, and lived with him as his wife until his death in 1948. They had no children. During this entire period, Marion Duncan continued to reside in the Callison section of Greenwood County, only five miles from the city of Greenwood where Maggie Lee and her second husband, James Day, made their home. Making no inquiry as to the whereabouts of her first husband, appellants says that she had no information as to his existence, never saw him after 1923, and did not know that he was still alive until after the death of James Day, in 1948.
The trial court adjudged that Maggie Lee's marriage to James Day, the second husband and the deceased employee, was unlawful, and not in good faith.
It is contended by appellant that although her first husband is still alive, and there has been no divorce, she committed no wrong or fraud under the criminal or civil law, because at the time of her second marriage her first husband, Marion Duncan, had been absent for seven years and more, unheard of, and not known by her to be alive. Eleven years had passed between the date of separation, in 1923, and the date of her second marriage, in 1934. During this time, Marion Duncan had married two other women, and had reared a large family of children by the last wife.
Appellant bases her contention as to presumption of death of the first husband after an alleged absence of seven years, on Section 8568 of the Code, which reads: 'All marriages contracted while either of the parties has a former wife or husband living shall be void: provided, that this section shall not extend to a person whose husband or wife shall be absent for the space of seven years, the one not knowing the other to be living during that time; nor to any person who shall be divorced, or whose first marriage shall be declared void by the sentence of a competent court.'
A mere marriage ceremony between a man and a woman, where one of them has a living wife or husband, is not a marriage at all. Such a marriage is absolutely void, and not merely voidable. Davis v. Whitlock, 90 S.C. 233, 73 S.E. 171, 175, Ann.Cas.1913D, 538. As held in Davis v. Whitlock, supra, the statute, Sec. 8568, however, does have an important effect on the status of the spouse who has been abandoned for seven years or more. '* * * He or she may marry again, and, while the wife or husband remains absent, the parties under the second marriage are entitled to full legal recognition as man and wife with regard to the enforcement of rights and the assumption of obligations as such; but all this must be at the risk that, if it turns out that the first spouse was alive at the time the second marriage was undertaken, then the second marriage will be void, and all supposed rights acquired under it will fall to the ground.' Davis v. Whitlock, supra.
As will be seen from the foregoing quotation, the presumption of death after a lapse of seven years enures to the benefit of the spouse who has been abandoned. But as shown by the record, there is no evidence that the first husband, Marion Duncan, was absent for a period of seven years, or that he abandoned his wife. Apparently, they mutually agreed to separate, and she left his abode and went to Greenville where she remained for two years before returning to the city of Greenwood. The husband, Duncan, continued to reside in the Callison section of Greenwood County, and never left this community, which is, as above stated, only about five miles from the city of Greenwood.
The general rule which is followed in this jurisdiction is that a continued absence of seven years from one's home or place of residence, unexplained, with no tidings of or from the absent person, either directly or indirectly, by his relatives or friends, or by anyone with whom he would naturally communicate, creates the presumption of death, unless there are facts or circumstances which tend to rebut this presumption. Dill v. Sovereign Camp, W. O. W., 202 S.C. 401, 25 S.E.2d 285; In re Duncan's Estate, 190 S.C., 211, 2 S.E.2d 388. However, in order to obtain the benefit of the presumption, evidence must be introduced that diligent search and inquiry have been made.
The general rule and its application is quoted in Re Duncan's Estate, supra [190 S.C. 211, 2 S.E.2d 390], from 16 Am.Jur., Sec. 33, Page 28, as follows: * * *."
In the Duncan case, it was held that diligent search and inquiry, in accordance with the rule, was made, the court stating the circumstances as follows: 'Although appellant made no efforts to locate Grisham prior to her second marriage, yet the patent sources of information which the circumstances of this case suggest are barren and there is no evidence that inquiries would have been productive of information.'
A different situation prevails here. We reiterate that the record shows that Marion Duncan, the first husband, continued to live in the neighborhood of their original home during the entire period in question, only five miles from Greenwood, where Maggie Lee resided continuously from 1930 until 1948, the year of the death of her second husband, James Day. And we assume that she still lives there. In her testimony, she says that she made no inquiry whatever to determine whether he was alive, or to determine where he might be. It is inconceivable that if any inquiry had been made in the Callison neighborhood, she would not have learned that he was still alive resided there. The inference is clear that she believed herself legally qualified to marry again because her first husband, Marion Duncan, had taken unto himself another wife.
Under the circumstances above stated, no presumption could arise as to the death of Marion Duncan. It follows that the...
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