Fancher v. North Dakota Workmen's Compensation Bureau
|United States State Supreme Court of North Dakota
|123 N.W.2d 105
|Ora E. FANCHER, Claimant and Respondent, v. NORTH DAKOTA WORKMEN'S COMPENSATION BUREAU, Appellant.
|22 August 1963
Syllabus by the Court.
1. A man and woman deporting themselves as husband and wife are presumed to have entered into a lawful contract of marriage. Section 31-11-03(30), N.D.C.C.
2. A presumption that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage takes the place of evidence of marriage unless and until evidence sufficient in quality appears to rebut it. The presumption then disappears and determination of the issue depends upon the evidence of record with the requirement that the party having the affirmative of the issue sustain his position by a preponderance of the evidence.
3. A disputable presumption may be controverted by other direct or indirect evidence but unless so controverted the finder of the facts is bound to find according to the presumption.
4. The effect of a presumption is to place upon the person against whom it is employed the burden of going forward with proof to rebut it.
5. Direct and positive proof of fact of marriage by production of official records or documents is not necessary in claim against Workmen's Compensation Bureau by widow for death benefits, in view of statute providing a man and woman deporting themselves as husband and wife are presumed to have entered into a lawful contract of marriage where the presumption is not controverted.
Helgi Johanneson, Atty. Gen., and Myron E. Bothun, Asst. Atty. Gen., Bismarck, for appellant.
Walter O. Burk, Williston, for respondent.
Elbert D. Fancher was killed in the course of his employment on September 5, 1954. His employer was insured under the North Dakota Workmen's Compensation Act. The respondent made timely application to the North Dakota Workmen's Compensation Bureau for an award of death benefits as his widow. The statutory special benefits were paid but widow's benefits were declined. A hearing was held before the Bureau on October 17, 1956, at which evidence was adduced. Subsequent thereto the Bureau made its findings of fact and conclusions of law and ordered a dismissal of the respondent's claim. An appeal was taken to the district court. The district court reversed the Bureau, found in favor of the respondent and entered judgment awarding her widow's death benefits within the limits prescribed by the Act, plus reasonable attorney's fees and costs. The Bureau has appealed from the judgment to this court and demands trial de novo.
The Bureau, in dismissing respondent's claim, found she had failed to establish proof of marriage. The district court on appeal found that the record before the Bureau established the marriage and that, up to and including the time of the death of the insured, they were husband and wife. This is the sole question for review in this court.
On an appeal from a judgment of the district court rendered on an appeal from a decision of the Workmen's Compensation Bureau, this court on a demand for a trial de novo reviews the whole record the same as in any case tried to the court without a jury. Gullickson v. North Dakota Workmen's Compensation Bureau, N.D., 83 N.W.2d 826.
The burden of proof is upon the respondent to show she is entitled to participate in the fund. Section 65-01-11, N.D.C.C.; Booke v. Workmen's Compensation Bureau, 70 N.D. 714, 297 N.W. 779; Kamrowski v. North Dakota Workmen's Compensation Bureau, 64 N.D. 610, 255 N.W. 101; and Dehn v. Kitchen, 54 N.D. 199, 209 N.W. 364.
The appeal to the district court, and from the district court to this court, is restricted to the record which was made and certified by the Workmen's Compensation Bureau. Sections 28-32-17, 28-32-19, N.D.C.C.
The record has been reviewed and it discloses that the respondent testified under oath in special hearing before the Bureau. She testified her name was Ora Ellen Fancher, nee Hughey; that she was 60 years of age; that she and the deceased were married at the home or parsonage of a Baptist minister at Princeton, Indiana, on December 29, 1940, and until the death of the insured remained husband and wife. She testified the deceased was an oil field worker at the time of the marriage, which occupation he followed the remainder of his life and that at the time of the marriage they lived at Grayville, Illinois, but the marriage license was obtained at Evansville, Indiana. A blood test was required and when the results of the blood test were obtained, they went to Princeton, Indiana, which was just across the river from Grayville, Illinois, and were married. She testified a marriage certificate was received but it was destroyed by fire when their automobile burned early in 1954 while at Newcastle, Wyoming, where her husband was then working in the oil fields.
Four driver's licenses were received into the record. The licensed operator, year of expiration, and State are listed as follows: Mrs. E. D. Fancher, 1945, State of Texas; Ora Ellen Fancher, 1944, State of Georgia; Mrs. E. D. Fancher, 1942, State of Illinois; and Ora Hughey Fancher, 1953, State of New Mexico. She testified these licenses were all issued to her.
There was dictated into the record the contents of a social security card exhibited by the respondent at the hearing stating that social security No. 449-50-1365 was issued to Ora Ellen Fancher and she testified she had possessed this card for about six years. The record also contains a photostatic copy of an application for a social security account number applied for by Ora Ellen Fancher, 205 East 12th Street, Odessa, Texas, dated April 24, 1951.
Also in the record are copies of federal income tax returns for the years 1950 and 1953 indicating that joint tax returns were filed by E. D. Fancher and Ora Fancher, as husband and wife, in those years.
The respondent also testified that she and her husband purchased a home in Odessa, Texas, in which they lived. There is contained in the record a warranty deed of a lot described as being located in the town of Odessa, Ector County, Texas, dated October 23, 1945, in which the grantees named are E. D. and Ora Fancher. The granting clause states that the property described is conveyed to 'E. D. Fancher and wife, Ora Fancher.' The respondent testified this property continued to be their home until the insured's death.
Also contained in the record is a deputy collector's receipt dated September 8, 1949, for income taxes paid by 'E. D. & Ora Fancher, Odessa, Texas.'
There is a war ration book No. 3 in the record issued to 'Oya E. Fancher of Coral Gables, Florida.' It contains no date but carries a description of the holder. It has a signature line which is signed 'Ora E. Fancher.'
The record also contains a photostatic copy of an application for insurance naming Elbert D. Fancher as the applicant and naming the beneficiary as Ora Ellen Fancher, whose relationship is described as wife. It was dated October 31, 1949, at Odessa, Texas, and shows the applicant's address as 205 East 12th Street, Odessa, Texas.
The record contains a letter dated October 8, 1954, from the Social Security Administration directed to Mrs. Ora E. Fancher, 405 N. Washington, Odessa, Texas, re Elbert D. Fancher requesting that she call at the office of the sender to assist in filing application for lump-sum death payment due her on her husband's earning record. She testified she received this payment.
Three affidavits appear in the record in which the deponents state they are acquainted with Elbert D. Fancher and Ora Ellen Fancher, nee Ora Ellen Hughey. Deponents state that the said persons were married on or about December 29, 1940, and lived together as husband and wife until the death of the said Elbert D. Fancher on or about September 5, 1954; that they owned their own home at 205 East 12th Street, Odessa, Ector County, Texas, for about 11 years and that they held themselves out as husband and wife throughout this period. These affidavits are subscribed to by the following: Mrs. Sallie Kennedy, who deposes sh...
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