Dowdle v. United States Fidelity & Guaranty Co.

• Decision Date: 07 November 1923
• Docket Number: (No. 476-3862.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 255 S.W. 388
• Parties: DOWDLE v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Texas Supreme Court

255 S.W. 388

DOWDLE v. UNITED STATES FIDELITY & GUARANTY CO.

(No. 476-3862.)^*

Commission of Appeals of Texas, Section A.

November 7, 1923.

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

Action by Mary Dowdle against the United States Fidelity & Guaranty Company. The Court of Civil Appeals (242 S. W. 771) affirmed a judgment for defendant, and plaintiff brings error. Judgments of Court of Civil Appeals and district court reversed, and cause remanded for new trial.

John White and John W. Craig, both of Dallas, for plaintiff in error.

Seay, Seay, Malone & Lipscomb, of Dallas, for defendant in error.

BISHOP, J.

Plaintiff in error, Mary Dowdle, filed this suit in district court against defendant in error, United States Fidelity & Guaranty Company, to recover on a policy under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), as an appeal from a decision of the Industrial Accident Board, alleging that she was the surviving commonlaw wife of Lucious Dowdle, and as such entitled to recover by reason of an accident resulting in his death on February 5, 1918.

The defendant in error in its answer denied that plaintiff in error was the wife of deceased. The case was tried before a jury, and, at the close of the evidence, which showed that prior to any alleged marital relation between Mary Dowdle and the deceased, he was married to one Callie Dowdle, the trial court directed a verdict in favor of defendant in error, for the reason that there was no legal evidence showing that the marriage of the deceased to Callie Dowdle had ever been dissolved. On the directed verdict the court rendered judgment, and on appeal the Court of Civil Appeals affirmed the judgment of the trial court.

On trial of the case in the district court the plaintiff in error offered in evidence a certified copy of the following decree, being a nunc pro tunc order:

"On this, the 7th day of August, A. D. 1920, came on to be heard the plaintiff, Callie Dowdell's motion to enter nunc pro tunc judgment as of November 22, 1915, in the above entitled and numbered cause; the said Callie Dowdell appearing by her attorney of record, D. R. Pickens. The court, after having heard the testimony of D. R. Pickens, attorney of record in said cause, and after the said D. R. Pickens had testified on oath that he was a practicing attorney of San Antonio, Tex., in the year 1915, and that he represented the said Callie Dowdell on the 22d day of November, 1915, having theretofore, on, to wit, the 13th day of October, 1915, filed a petition, styled as aforesaid, for plaintiff, also having filed a waiver in said cause, properly executed and signed by the defendant Lucious Dowdell, and that said waiver was filed on the 22d day of November, 1915. The said D. R. Pickens testified to the following facts: Judge W. S. Anderson presiding at this trial, said cause was regularly called, and that the court, said Judge W. S. Anderson, after having heard the testimony of Callie Dowdell, stated in open court that the plaintiff Callie Dowdell was entitled to a divorce, and was granted a divorce from the defendant Lucious Dowdell; there and then the plaintiff paid all costs of the court that had then accrued on said date, to wit, 22d day of November, 1916; that immediately thereafter he, D. R. Pickens, prepared a decree in said cause, stating that plaintiff Callie Dowdell was granted a divorce from the defendant Lucious Dowdell, and the bonds of matrimony theretofore existing were dissolved, and that he, the said D. R. Pickens, filed said decree with the clerk of the district court of Bexar county, Tex., on the same day on which the divorce was granted. Therefore it appears to the court that the plaintiff Callie Dowdell is entitled to the relief prayed for, and that her motion to enter nunc pro tunc judgment in said case as of the 22d day of November, A. D. 1915, and that in all things her motion should be granted as prayed for. Therefore, it is ordered, adjudged, and decreed by the court that the plaintiff Callie Dowdell be granted a divorce from the defendant Lucious Dowdell; that the bonds of matrimony heretofore existing be dissolved, and that this decree be entered nunc pro tunc as of the 22d day of November, A. D. 1915. It is further ordered, adjudged, and decreed by the court that the plaintiff pay all costs in this...