Fulton Bag & Cotton Mills v. Fernandez

• Decision Date: 18 February 1935
• Docket Number: 16037
• Citation: 159 So. 339
• Parties: FULTON BAG & COTTON MILLS v. FERNANDEZ et al
• Court: Court of Appeal of Louisiana — District of US

159 So. 339

FULTON BAG & COTTON MILLS v. FERNANDEZ et al

No. 16037

Court of Appeal of Louisiana, Orleans.

February 18, 1935

Rehearing denied March 18, 1935.

Lemle Moreno & Lemle, of New Orleans, for Fulton Bag & Cotton Mills.

Porteous Johnson & Humphrey, of New Orleans, for Elsie Badelle Fernandez.

Lester Pailet, of New Orleans, for Hannah Anderson.

OPINION

JANVIER Judge.

This is a contest between two women, each seeking recognition as the "dependent widow" of the deceased employee.

In the course of his employment and in an accident which arose therefrom, a negro employee, sometimes known as Irvin and sometimes as Alvin Fernandez, was killed.

Two women presented claims for compensation, which, under the provisions of Act No. 20 of 1914, as amended, is due to the widow who, previous to her husband's death, has been dependent upon him for support.

The employer, Fulton Bag & Cotton Mills, conceding liability to the proper legal dependent under the statute and proceeding under the provisions of Act No. 123 of 1922, deposited in the registry of the civil district court the weekly compensation payments which had accrued, asserted its willingness to make future payments to the proper legal claimant, and cited the two women to appear and assert their respective rights.

Both claimants concede that $ 3.12 per week, the amount the employer admits is due, is correct, and the controversy arises solely from the rival claims of the two so-called dependent widows.

Elsie Badelle Fernandez claims to have been the legal wife of the deceased employee, and maintains that, until the time of his death, she was living with him within the contemplation of the statute, and that, therefore, she is conclusively presumed to have been dependent upon him, and she asserts her right to the full amount of each weekly payment.

The other woman, Hannah Anderson, in her pleadings avers that she is "the true and legal widow" of the deceased employee and she, too, seeks judgment for the full amount of compensation for which the employer admits that it is liable.

There are certain facts which are either conceded, or are so abundantly proven as to warrant acceptance as correct beyond question:

Elsie Badelle and the deceased were legally married in St. John the Baptist parish in 1927 and were never divorced or legally separated; Hannah Anderson and the deceased were the principals in a marriage ceremony performed in New Orleans in 1934, a few months prior to the accident; a license was obtained for the marriage with Hannah Anderson, and, in all respects, that marriage was legal except for the insurmountable obstacle of the pre-existing marriage with the other woman; neither of the women knew of the existence of the other, nor, until after his death, of any other ceremony than her own, in which Fernandez had taken part as a principal.

The conclusion which follows from these facts is that on the day on which he met his death, Fernandez was the legal husband of Elsie Badelle and that Hannah Anderson was his putative wife and, as such, was entitled to all the civil rights of a putative wife, since, being in ignorance of the former marriage, she was in good faith when she married Fernandez and remained in good faith until the time of his death. Civ. Code, arts. 117, 118.

The district judge concluded from the evidence that the legal wife, Elsie Badelle, had not been living with her husband and was not dependent upon him at the time of his death, and held that she was not entitled to any part of the award, and further held that, since there was no dependent legal wife, the putative wife should receive the full amount. Judgment was rendered accordingly.

Elsie Badelle Fernandez, the legal wife, has appealed, and the employer, Fulton Bag & Cotton Mills, has also appealed for the reason that, in the event there should be a reversal of the judgment as between the two contending "widows," there would then be a judgment in favor of the legal wife, and, were there no appeal on the part of the employer, the judgment in favor of Hannah Anderson and against the employer having become executory, there would be two judgments against the employer, one in favor of each of the claimants.

We first consider the status and the rights of the legal wife.

The evidence produced on her behalf shows that after the marriage in the parish of St. John the Baptist, she and Fernande lived together until he determined to go to the city of New Orleans to seek employment. Some of the witnesses fix the time of his departure for New Orleans at four or five years after the marriage, but Elsie, herself, says in one part of her testimony that it was two or three months thereafter, and this testimony of Elsie is pointed to by her rival claimant as indicating that there was a physical separation almost immediately after the marriage between Fernandez and his legal wife. But the testimony of Elsie Badelle, when read as a whole, shows plainly that she must have misunderstood the question asked her, and that, when she referred to a period of two or three months, she had in mind not the period during which Fernandez remained in the parish of St. John the Baptist after the marriage, but the period immediately preceding his death, during which time he did not return to visit her. The evidence shows that for approximately two and one-half months next preceding his death Fernandez did not make any further visits to the parish of St. John the Baptist.

There is a preponderance of evidence to the effect that after Fernandez had taken up his residence in New Orleans, where he had found employment, he continued regularly to visit his wife, Elsie, in the nearby parish and to cohabit with her and to contribute substantially to her support. There is evidence to the effect that these visits were as frequent as once each week or two, and that they continued until about two and one-half months before the fatal accident. The last visit seems to have been made at about the time at which the second, or bigamous, marriage was contracted with the other claimant Hannah Anderson.

There is, however, testimony by which the putative wife seeks to show that the visits of Fernandez to his legal wife had been discontinued many months prior to his death and that for a very long time he had not contributed to her support.

An attempt is made to prove also that the legal wife was supporting herself entirely by her own labors, and there is evidence tendered to show that she had so far forgotten her moral and conjugal obligations as to commit adultery with various other men.

This evidence, however, falls so far short of being convincing that we feel justified in stating that it is patently unworthy of belief. It consists of statements of witnesses who knew Fernandez in New Orleans and who stated that he could not have paid regular visits to his wife in the country parish during many months preceding his death because of the fact that the said witnesses claimed to have seen him here in New Orleans during all that time. In view of the fact that the legal wife concedes that most of his time was spent in New Orleans and that he only visited her overnight or for very short periods, such evidence as that to which we have just referred, even if true, is negative in character and must yield to the positive evidence given by witnesses who actually saw Fernandez on his many visits to his wife at her home in the parish of St. John the Baptist.

The fact that he did not return to her during the two and one-half months next preceding his death should not, under the circumstances, deprive Elsie of her rights as his dependent widow. Had she affirmatively acquiesced in his continued absence during this time and in his failure to contribute to her support, the case against her might have been made out. But, in so short a time as two and one-half months, there was no legal duty in her, in order to retain her status, to demand his return, or to do more than to patiently wait, since, so far as she knew, he was devoting himself to earning money for her support, and, so far as she could tell, he may have been prevented by his labors, or by economic necessity, from making his regular trips. At any rate, we think it would be dangerous to hold that, merely because a wife has allowed two and one-half months to elapse after the departure of her husband, without taking legal steps to compel him to return, she should lose her legal rights as his dependent wife or widow. The case, on this feature, is not similar to Milton v. Long-Bell Lumber Co., 165 La. 336, 115 So. 582, which is relied upon by the putative wife, because in that case, though it is true that the separation had existed for only three or four months, still it had taken place as the result of "mutual consent." We understand that when the Supreme Court used that term it meant that the parties had agreed to disagree and that, in the future, they would go their separate ways. That is not the case here. The duration of the separation is unimportant where there is an agreement to separate and to discontinue the conjugal relationship. Where there is such an understanding and an actual physical separation has occurred, the status of dependent widow immediately ceases, and, in such case, should the husband be killed the day after the separation, the widow could not recover in compensation because she would have lost her status as a dependent wife or widow. On the other hand, where there is a separation from economic necessity, but the wife continues in the hope of a reunion on some happy day in the future and continues to receive support from the absent spouse, so long as the expectation that he will return is reasonable, just so long does she remain a dependent wife within...