Diaz v. U.S. Coal & Coke Co.

• Decision Date: 09 November 1937
• Citation: 270 Ky. 565,110 S.W.2d 290
• Parties: DIAZ et al. v. UNITED STATES COAL & COKE CO. et al.
• Court: Kentucky Court of Appeals

110 S.W.2d 290

270 Ky. 565

DIAZ et al. v. UNITED STATES COAL & COKE CO. et al.

Court of Appeals of Kentucky

November 9, 1937

Appeal from Circuit Court, Harlan County.

Proceedings by Lena Gomez Diaz and others and Sophia Sandival Diaz and another to recover compensation under the Workmen's Compensation Act for the death of Jesus Diaz, employee opposed by the United States Coal & Coke Company, employer. From a judgment affirming an award of compensation to claimants Sophia Sandival Diaz and another by the Workmen's Compensation Board, claimants Lena Gomez Diaz and others appeal.

Affirmed.

J Leonard Davis, of Barbourville, for appellants.

Wm Sampson and Forester & Smith, all of Harlan, for appellees.

CLAY Justice.

Jesus Diaz, a Mexican, was in the employ of the United States Coal & Coke Company at its mine in Lynch, Ky. Both had accepted the provisions of the Workmen's Compensation Act (Ky.St.1930, § 4880 et seq.). On October 14, 1930, Diaz was injured by an accident arising out of and in the course of his employment, and died as the result thereof on December 23, 1930. His wages were sufficient to authorize maximum compensation to dependents. Lena Gomez Diaz and her children applied for compensation. Sophia Sandival Diaz and her son, Jesus Diaz, Jr., also applied. Compensation was awarded Sophia and Jesus Diaz, Jr., and on full board review the award was affirmed. The award was also affirmed on petition for review to the Harlan circuit court. Lena Gomez and her children appeal.

The evidence on behalf of appellants is, in substance, as follows: Lena, whose last name was Garibay, when about 14 years of age, was married to Jesus Gomez in the state of Texas. Of this marriage there were born two children; a girl by the name of Narcissa, and a boy by the name of Reno Gomez. In the year 1917, Lena and Jesus Gomez were divorced. In the year 1923, she and her children moved to Lynch. There she lived with Jesus Diaz, and he supported her and her two children, who were under 16 years of age. Being only his common-law wife, she and Jesus Diaz decided to be married. The marriage ceremony took place on January 14, 1928, and was performed by the Reverend Alfred Hansens, a Catholic priest at Lynch, in the presence of Sisto Gevara and Pete Moreno. In June, 1929, Lena, who was ill, went to Detroit for treatment, and took her two infant children with her, and while at Detroit she received from Jesus Diaz several letters couched in endearing terms, but addressed to her in her maiden name of Garibay; but there was some evidence that this was an old Mexican custom. After remaining in Detroit for a while, she and her children went to McKeesport, Pa., where they were residing at the time of the death of Jesus Diaz. Before going to Detroit, Jesus Diaz gave her $300, and sent her various sums while there for the support of herself and children.

On the other hand, the evidence on behalf of appellees was in brief as follows: No marriage license was issued to Lena and Jesus Diaz by the clerk of the Harlan county court. Jesus Diaz was married to Sophia Sandival Diaz on December 28, 1929. The marriage was performed on a license duly issued, and the marriage certificate was signed by T. R. McBrayer, justice of the peace of Harlan county. Sophia was living with the deceased at the time of his injury, and their infant son was born on November 2, 1930, and was living in the decedent's household at the...