Floyd v. Indemnity Ins. Co. of North America

Decision Date01 February 1947
Citation199 S.W.2d 106,184 Tenn. 381
PartiesFLOYD v. INDEMNITY INS. CO. OF NORTH AMERICA et al.
CourtTennessee Supreme Court

Appeal from Chancery Court, Davidson County; Wm. J. Wade Chancellor.

Interpleader bill by Indemnity Insurance Company of North America against Gustella Pearl Floyd, and Mattie B. (Coleman) Floyd. From an adverse decree, Gustella Pearl Floyd appeals.

Decree affirmed.

Richard Marshall, of Nashville, for appellant.

D. F. Blackmon, of Nashville, for appellee insurance company.

Norman & Keefe, of Nashville, for appellee Floyd.

PREWITT Justice.

This cause originated in the chancery court of Davidson County wherein the insurer, Indemnity Insurance Company of North America, filed its interpleader bill against the appellant Gustella Pearl Floyd, and the appellee, Mattie B. (Coleman) Floyd. The Indemnity Insurance Company was the insurer carrier for the Nashville Warehouse & Elevator Corporation whose employee, Ephriam William Floyd, was killed by a fall while in the employment of said corporation. Appellant, Gustella Pearl Floyd, was the alleged last wife of the deceased and married him on April 21, 1935. The appellee, Mattie B. (Coleman) Floyd, was the lawful wife of the deceased, having married him in 1924.

The chancellor found in his findings of fact that the appellee, Mattie B. (Coleman) Floyd, was entitled to recover under the Workmen's Compensation Act the sum of $5.41 per week for a period of not exceeding four hundred weeks.

The appellee, Mattie B. (Coleman) Floyd, is not questioning the amount of the award of the chancellor. The real question presented here is whether the appellee, Mattie B. (Coleman) Floyd, is entitled to recover under the Workmen's Compensation Act as the surviving wife of the deceased employee, or whether the appellant, Gustella Pearl Floyd, the alleged second wife of the deceased employee, is entitled to recover the benefits.

The chancellor found as a fact that the deceased, Ephriam William Floyd, deserted his wife, Mattie B. (Coleman) Floyd, and went off with the appellant, Gustella Pearl Floyd. The chancellor further found that prior to this bigamous marriage the appellant, Gustella Pearl Floyd, had been going with the deceased and having improper relations with him over the protest of the appellee, Mattie B. (Coleman) Floyd; and the chancellor also found that the appellee had sought unsuccessfully for years to get the deceased to come back and live with her as man and wife.

Our Compensation Act (Williams' Code, § 6883) provides as follows:

'Who are dependents, wholly and partial.--For the purposes of this chapter, the following described persons shall be conclusively presumed to be wholly dependent:
'(1) A wife, unless it be shown that she was voluntarily living apart from her husband at the time of his injury, * * *.'

The chancellor further found in his findings of fact that the appellee, Mattie B. (Coleman) Floyd, was the lawful wife of the deceased, Ephriam William Floyd, from whom she had never been divorced and was not voluntarily living apart from him at the time of his injury and death; but on the contrary had vainly sought to have deceased discontinue his association with his alleged second wife and come back and live with her. These various findings are supported by material evidence.

Upon review of a compensation case, this Court does not weigh the evidence, but looks to it only to see if the finding of the trial court is supported by any material evidence. Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503.

The question of dependency under the Act being one of fact, the finding of the trial judge will not be disturbed by a reviewing court if supported by material evidence. Sweeton v. Tennessee Consol. Coal Co., 179 Tenn. 216, 164 S.W.2d 1010; Diamond Coal Mining Co. v. Curnutt, 179 Tenn. 278, 165 S.W.2d 575.

The appellant, Gustella Pearl Floyd, contends that she was lawfully married to the deceased, but the evidence shows that the deceased and the appellee, Mattie B. (Coleman) Floyd, were never divorced; and the evidence further shows that both of the claimants to this fund reside and have resided in Davidson County for many years.

In the case of Partee v. Memphis Concrete Pipe Co., 155 Tenn. 441, at pages 446 and 447, 295 S.W. 68, at page 69, this Court, in construing our Compensation Act, Williams' Code, § 6883(1), said:

'The Tennessee statute defining wives 'conclusively presumed to be wholly dependent'...

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