Derrell v. United States, 5569.

• Decision Date: 12 January 1949
• Docket Number: No. 5569.,5569.
• Citation: 82 F. Supp. 18
• Parties: DERRELL v. UNITED STATES et al.
• Court: U.S. District Court — Eastern District of Missouri

82 F. Supp. 18

DERRELL v. UNITED STATES et al.

No. 5569.

United States District Court E. D. Missouri, E. D.

January 12, 1949.

Paul H. Koenig and Edward W. Fredrickson, both of St. Louis, Mo., for plaintiff.

Drake Watson, U. S. Atty., of New London, Mo., and William V. O'Donnell, Asst. U. S. Atty., of St. Louis, Mo., for defendant.

Donald Gunn, of St. Louis, Mo., for third-party defendant Mrs. Bytha Hooker Rhodes.

Olan R. Van Zandt, of Sherman, Tex., and Thompson, Mitchell, Thompson & Young, and Harold I. Elbert, all of St. Louis, Mo., for third-party defendant Mrs. Bessie Boucher.

Roberts P. Elam, of St. Louis, Mo., guardian ad litem for third-party defendants James Dalton Hooker, Jr., Donald Leslie Hooker, and Derrell D. Wayne Hooker, minors.

HULEN, District Judge.

Plaintiff and defendants (excepting United States of America) claim proceeds of insurance policies issued by the Government under the National Service Life Insurance Act, 38 U.S.C.A. § 801 et seq., on the life of Jack Derrell (James Dalton Hooker alias Jack Derrell), who died in the military service on March 18, 1945. This proceeding was instituted against the United States by Dacle Derrell, claiming to be the widow of insured and beneficiary named in policies. By answer the Government put in issue the claim of plaintiff and interpled third-party defendants as claiming some interest in proceeds of the policies.

Third-party defendants charge plaintiff was never legally married to insured and is not within the classes of beneficiaries permitted under the Act. Defendant Mrs. Bessie Boucher is a paternal aunt of the insured and claims the insurance proceeds as one in loco parentis to the insured and as contingent beneficiary in the policies. Remaining third-party defendants contend Mrs. Boucher never stood in loco parentis to the insured. Defendant Mrs. Bytha Hooker Rhodes, first wife of insured, claims the proceeds of the policies as his widow. Defendants James Dalton Hooker, Jr., Donald Leslie Hooker, and Derrell D. Wayne Hooker are minor children of Jack Derrell by his first marriage. Their position is, Bytha Hooker Rhodes having abandoned her husband and participated in at least two bigamous marriages forfeited her rights as widow of insured and does not come within the meaning of the term "widow" as used in the Act, and as the only children of the insured they are the persons qualified under the Act as beneficiaries to receive the proceeds of the insurance policies in issue. The Government is impartial between the contending parties.

The Government admits that upon the death of Jack Derrell there was payable, subject to the provisions of the policies, the sum of $10,000. All parties admit that prior to institution of this suit $352.64 had been paid by the Government to plaintiff on the policies and the balance due is $9,647.36.

The background of certain of the principals concerned bear upon the issues, the credibility of witnesses, and the weight to be given to certain phases of the evidence.

Jack Derrell (as James Dalton Hooker) was born in 1908. At the age of 14 his mother died. It made a profound impression upon him. His father thereafter took little or no interest in his welfare. He was maintained and cared for by his aunt, Bessie Boucher. He grew to manhood as a shiftless, irresponsible individual lacking in moral concepts. In 1927 he married Bytha Rhodes. The marriage was a failure by all standards. Three children, James Dalton Hooker, Jr., Donald Leslie Hooker, and Derrell D. Wayne Hooker, were born during the eight years of the marriage. The family moved from place to place and finally broke up due to the characters of the father and mother. They separated in February, 1935. Mrs. Boucher attempted to take care of the father and children but was unable to do so. The youngest of the three children was turned over to "someone" and his whereabouts is now unknown. The next oldest lived with a family by the name of Walker in Texas. The oldest is in the United States Army. There was a total lack of interest by the father or mother in the children after separation. Bytha Rhodes testified that she never instituted divorce proceedings and was never served with any divorce papers by her husband. She entered into two subsequent marriages during her husband's life and apparently has married twice since the death of insured, once subsequent to the filing of her answer in this case.

Dacle Derrell appears in the life of Jack Derrell about 1939. At that time Jack Derrel brought her to the home of his aunt, Mrs. Boucher. They stayed at the home several days and occupied a room as husband and wife until the aunt learned they were not married and remonstrated that the relationship could not continue in her house. On this occasion the aunt told plaintiff that they could not be legally married because Jack Derrell had a wife and three children. At this time plaintiff falsely represented she was married to insured in Yuma, Arizona. No such claim is now made. The evidence indicates that thereafter plaintiff and Jack Derrell continued their illicit relationship until a marriage ceremony was performed on September 6, 1942, at Fort Smith, Arkansas. On the application for the marriage license signed by plaintiff and Jack Derrell, Derrell represented himself as never having been married. Plaintiff gave no testimony of any character indicating she had knowledge of any divorce proceedings by Jack Derrell during the time of her acquaintance with him. A short time before his death and while the insured was in France, with no opportunity thereafter during his lifetime to obtain a divorce, he wrote a letter to Mrs. Boucher stating that he had never divorced his first wife and knew that his marriage to plaintiff was without validity.

I.

We pass to plaintiff's claim. All third-party defendants assail plaintiff's marriage on the ground of the insured's prior marriage to Bytha Rhodes. Plaintiff and insured went through a marriage ceremony in Fort Smith, Arkansas. Plaintiff's claim must stand or fall on the validity of this marriage. She is named in the policies of insurance as first beneficiary and comes within the class of beneficiaries permitted by the Act if the marriage was legal.

There are certain well-recognized rules of law applicable. A marriage void where contracted is void elsewhere. Henderson v. Henderson, 265 Mo. 718, 178 S.W. 175. The validity of a marriage is to be determined by the law of the place where it is contracted. Franzen v. E. I. Du Pont De Nemours & Co., 3 Cir., 146 F.2d 837. The law of the State of Arkansas is substantially the same as the law of Missouri as to presumption of validity attaching to the second marriage. That law, as we understand it, is, the burden of proof is always on the party attacking the validity of the second marriage. All presumptions are in favor of the second marriage. The party having the burden of proof must overcome every presumption in favor of the marriage alleged to be invalid. There is a corollary to the presumption. The law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy. Validity of the second marriage being under attack its invalidity cannot be found unless the parties holding the burden complete a chain of evidence which not only demonstrates validity of the earlier marriage and its subsistence at the time of the later marriage, but which will exclude every indication or suggestion which might conceivably rescue the second marriage from invalidity. See Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714, 77 A.L.R. 722. It follows the presumption is a rebuttable one. Ribas v. Stone & Webster Engineering Corporation, Mo.App., 95 S.W.2d 1221. In Gray v. Gray, 199 Ark. 152, 133 S.W.2d 874, 876, the Court observed:

"The rule, however, has its limitations, and must give way to reality when facts opposing the presumption are presented. This is true in respect of all presumptions — the term `presumption' being used to signify that which may be assumed without proof, or taken for granted. It is defined as something asserted as a self-evident result of human reason and experience."

In the Gray case, a contest over a deceased husband's estate between a wife by a first marriage and one relying upon the presumption of validity of the second marriage, the Court, after stating the law that arises in favor of the validity of the second marriage as against a former marriage, stated:

"The theory upon which the principle rests is that no man is presumed to do an unlawful act. `The law presumes morality, and not immorality, and that every intendment is in favor of matrimony.'"

If any presumption in favor of morality remains in this case in favor of plaintiff it is a weak one, if not a myth. The testimony of insured's aunt, Mrs. Boucher, that plaintiff and insured came to her house in 1939 and lived together there for several days under circumstances testifying to utter disregard of the most elemental concepts of morals, decency, and respect for insured's aunt, was not denied by plaintiff. The aunt by her appearance and testimony in this case impressed me as of good character, kind and generous to a fault. Finally she could no longer tolerate the presence of plaintiff and insured, under such circumstances, in her house. The aunt then told plaintiff they could not continue to live together in her house, that insured was married and had three children. Plaintiff did not deny this testimony. The record is silent as to plaintiff expressing any surprise on the occasion but she made a false statement as to her marriage. Plaintiff intermittently continued her relationship with insured until the marriage ceremony.

Insured's first wife denies any divorce proceedings ever having been initiated by her or that she was ever served or had any knowledge of any divorce proceedings being initiated by the insured. Proof of the first marriage was made. If insured...