Elliott v. Industrial Accident Board

• Decision Date: 16 January 1936
• Docket Number: 7503.
• Citation: 53 P.2d 451,101 Mont. 246
• Parties: ELLIOTT v. INDUSTRIAL ACCIDENT BOARD.
• Court: Montana Supreme Court

53 P.2d 451

101 Mont. 246

ELLIOTT v. INDUSTRIAL ACCIDENT BOARD.

No. 7503.

Supreme Court of Montana

January 16, 1936

Appeal from District Court, Glacier County; R. M. Hattersley, Judge.

Proceeding under the Workmen's Compensation Act by Adell Elliottclaimant, for the death of her alleged husband, Edward E Elliott, opposed by the Santa Rita Pipe Line Company employer.The decision of the Industrial Accident Board denying the claim was reversed by the District Court, and the Board appeals.

Affirmed.

Raymond T. Nagle, Atty. Gen., C.J. Dousman, Asst. Atty. Gen., and Henry McClernan, Sp. Asst. Atty. Gen., for appellant.

Guy C Derry, Chris W. Demel, and Philip Savaresy, all of Billings, for respondent.

MATTHEWS Justice.

Edward E. Elliott, while employed by the Santa Rita Pipe Line Company at Cut Bank, Montana, under the name of Thye Kelly, was accidentally killed in the course of his employment.Adell Elliott filed with the Industrial Accident Board her claim for compensation as the widow of the deceased.After hearing had, at which considerable testimony was taken, the board, on December 11, 1933, made findings of fact and conclusions of law on which it rendered its order and decision denying the claim on the ground that the claimant was not the wife of deceased at the time of his death.Both the claimant and the employer moved for a rehearing, the motions were granted and additional testimony was taken, and on December 1, 1934, the board affirmed and adopted its former findings, made additional findings, and again rendered decision against the claimant.The claimant then appealed to the district court of Glacier county, where the matter was reviewed upon the record of the board alone.The court reversed the decision of the board and awarded the claimant compensation.The board has appealed from the judgment upon the sole specification that the court erred in reversing the order and decision of the board.

The proceeding in the district court was one of review, and the reversal can be justified only if the evidence in the record preponderates against the conclusions of law and the decision of the board.Willis v. Pilot Butte Min. Co.,58 Mont. 26, 190 P. 124;Dosen v. East Butte Copper Min. Co.,78 Mont. 579, 254 P. 880;Williams v. Brownfield-Canty Co.,95 Mont. 364, 26 P.2d 980;Woin v. Anaconda Copper Min. Co.,100 Mont. ___, 43 P.2d 663.

The record presents a rather bewildering tangle with relation to the matrimonial career of Edward E. Elliott.Between the time of the first hearing and the rehearing, Charlotte Wolf Elliott filed a claim for compensation as the widow of deceased; her showing by affidavit and submission of a marriage license is that she married "Edward E. Elliott," then a brakeman on a railroad running into Little River, Kan., in June, 1920, divorced him in 1926, and remarried him, under a license showing his residence as "Amarillo, Texas," on March 28, 1927.She then states that "a little later Mr. Elliott secured a considerable sum of money from me and left for Amarillo, Texas"; how long after the 1st of April, 1927, this couple lived together is not stated.

In support of her claim for compensation, Adell Elliott testified that she met the deceased, Edward Everett Elliott, at "Amarillo, Texas," on Memorial Day, 1926, and on March 5, 1927, they married at Amarillo, Tex.During the time she knew Elliott in Texas he was yardmaster for the Fort Worth & Denver Railroad.In April, 1927, Edward and Adell Elliott came to Billings, and there lived together as man and wife until April 29, 1931, when Mrs. Elliott secured a decree of divorce.About this time Elliott went to jail to serve a 30-day sentence for violation of the liquor laws, with, apparently, 90 days' additional sentence which was temporarily suspended.From his release up to the time he returned to jail to serve the 90-day sentence, Elliott lived with one Dorothy Reick; they living together as man and wife to all outward appearances.Miss Reick visited Elliott in jail, and he then told her that, on his release, he was going to Casper, Wyo., and asked her to go with him; he secured a license to marry her, evidently without consulting her; it was never used.

Adell Elliott's claim for compensation is based upon the following showing made before the board: Mrs. Elliott testified that she never ceased to care for her husband, but that he had been gambling and drinking to excess and she divorced him to straighten him up; that she never felt that she was divorced from him while in jail.She testified that they had a conversation shortly before his release in which she told him that she would marry him again if "he would quit drinking and improve his conduct"; they agreed to remarry, leave Billings, and go somewhere else for a fresh start.She had made arrangements with a traveling man for them to go with him in his car to Casper, paying $5.50 as their share of the cost of transportation.On leaving the jail, and before starting for Casper, according to her story, she said, "Ed, where are we going to get married?" to which he replied, "Dell, it costs $2.00 for a marriage license and $5.00 for a justice of the peace to marry us, and I have not got a cent and you have very little.If we agree to get married and if we agree that we are married and go ahead and live together as man and wife, it will be a common law marriage, *** it will be just as good."They thereupon so agreed, took the trip to Casper and later went to Cut Bank, where they lived under an assumed name, but at all times lived together and held each other out to their neighbors as man and wife.

More than twenty witnesses testified either orally or by affidavit that the parties conducted themselves at all times as a regularly married couple; Edward supported her; she incurred bills at stores, which he paid; they occupied a single room and bed; and so lived and conducted themselves from the time of their agreement in April, 1932, up to the time of the fatal accident on September 4, 1933.Mrs. Elliott was with Elliott at the time of his death, took charge of the body, and took it to Billings for burial.

Adell Elliott was corroborated with respect to her claim to the following extent: The deputy sheriff in charge of the jail where Elliott was confined the second time made affidavit that he had many conversations with Elliott, who expressed "a great deal of affection" for his wife, from whom he stated he was divorced, but said they"were going to get married again;" that...