Gillaspie v. E. W. Blair Const. Corp.

• Decision Date: 25 January 1964
• Docket Number: No. 43725,43725
• Citation: 192 Kan. 455,388 P.2d 647
• Parties: Pearl GILLASPIE, Appellee, v. E. W. BLAIR CONSTRUCTION COMPANY, Trinity Universal Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 647

388 P.2d 647

192 Kan. 455

Pearl GILLASPIE, Appellee, v. E. W. BLAIR CONSTRUCTION COMPANY, Trinity Universal Insurance Company, Appellants.

No. 43725.

Supreme Court of Kansas.

Jan. 25, 1964.

Syllabus by the Court

A woman claimed compensation for the death of her husband, which occurred on March 3, 1962. She was divorced from a former husband on May 28, 1961. Six days later, on June 4, 1961, she entered into a common-law marriage with the workman, contrary to G.S.1949, 60-1512 providing that marriage within six months after divorce is void. They publicly acknowledged each other as husband and wife and assumed marriage rights, duties and obligations, which relation persisted after the wife's disability was removed, and they were so living together at the time of his death. It is held: the claimant was the 'legal widow' of the deceased workman within the meaning of G.S.1949, 44-508(j).

Herbert A. Marshall, Topeka, and Allen Meyers and Doral H. Hawks, Topeka, on the briefs, for appellants.

William K. Ong, Fort Smith, Ark., and T. M. Murrell, George A. Scott and Jack A. Quinlan, Topeka, on the briefs, for appellee.

FATZER, Justice.

In this workmen's compensation case the claimant, Pearl Gillaspie, sought death benefits on account of the death of Clyde J. Gillaspie. Claim was also made by three minor children, Jerry C. Gillaspie, born April 10, 1943, Roger Gillaspie, born May 3, 1944, and Donna L. Gillaspie, born May 31, 1946.

The appellant-respondents do not challenge the right of the three minor children to compensation but contend that Pearl Cillaspie was not the legal widow of the decedent within the meaning of the workmen's compensation act. (G.S.1949, 44-508[j].) At the hearing before the workmen's compensation examiner, the parties stipulated that the decedent sustained personal injury by accident arising out of and in the course of his employment with respondents on March 3, 1962, and that death resulted on that day from the accident; that the parties were governed by the workmen's compensation act and that the average annual wages of the decedent were sufficient for the maximum award; that defendant was divorced from Betty Gillaspie on April 14, 1960, there being the three minor children of that marriage heretofore named; that decedent was under order of the district court of Gove County to pay support for each of the children at the rate of $45 per month; that the accident and death occurred in Coffey County, and that notice and written claim for compensation were timely filed.

Pearl Gillaspie testified that she commenced living with Gillaspie on June 4, 1961, at Hiawatha; that during the period she lived with him she was totally dependent upon him for her livelihood; that although a marriage ceremony was never performed, she regarded hereself as Gillaspie's wife and that she and Gillaspie held themselves out as husband and wife and lived together as husband and wife from June j, 1961, until his death; that they had planned to go to Las Vegas in January, 1962, to have a marriage ceremony performed, and continue on to California to visit Gillaspie's parents but that working conditions required continual postponement; that the decedent always introduced her as his wife to members of his family as well as his friends and acquaintances; that Gillaspie told his parents and the three minor children that they were married; that she used the name of Pearl Gillaspie or Mrs. Clyde J. Gillaspie on their joint checking account and bills to the family were so made out; that the joint checking account was in The Peoples National Bank of Burlington in the name of Pearl Gillaspie and Clyde Gillaspie or the survivor of them and each of the parties issued checks against the account, which were honored in due course by the bank; that she had been divorced from D. N. Cheek, Jr., on May 28, 1961, in Labette County, and that to her knowledge no one knew prior to the accident and death on March 3, 1962, that she and Gillaspie had not been legally united in a marriage ceremony.

There was evidence by other witnesses who testified for the claimant that they had known Pearl Gillaspie and the decedent for some time; that Gillaspie had introduced Pearl to them as his wife, and they always understood the Gillaspies were husband and wife; that Gillaspie publicly held Pearl out to be his wife, and they appeared to be happily married and were not separated at any time; that Gillaspie claimed Pearl as his wife for income tax purposes on the company records, and they signed the 1961 income tax returns and filed them with the proper authorities, using the names of Clyde Gillaspie and Pearl Gillaspie, and that the state of Kansas issued to Pearl Gillaspie upon her application a Kansas operator's license and a fishing license during the year 1961.

Pearl was recalled as a witness for the minor children and testified she knew the decedent was making support payments for the children; that Jerry Gillaspie was married on March 12, 1962; that Roger Gillaspie was married on August 18, 1962, and that Donna L. Gillaspie was living with her mother, Betty Gillaspie. During her testimony she was asked the following questions and she made the following answers:

'Q. Did you and your husband mutually assent that you were husband and wife?

'A. Yes.

'Q. Notwithstanding the fact that you did not have a legal ceremony?

'A. Yes.

'Q. I don't remember if I ever asked you or not. Did you perform all of the functions as required of you as his wife between June 4, 1961, and March 3rd?

'A. Yes.

'Q. Did you ever speak of each other in privacy of each other as husband and wife?

'A. Yes.'

Pertinent findings of the workmen's compensation examiner are quoted:

'In addition to the stipulations of the parties, it is by the Examiner found that from and after June 4, 1961, until the death of Clyde J. Gillaspie, said Clyde J. Gillaspie and Pearl Gillaspie did mutually assent to be husband and wife together, and that their intention to have a marriage ceremony performed at some time in the future was not a condition in the mind of either party to such assent; that the parties lacked capacity to become husband and wife until six months following May 28, 1961, but that with the ripening of such capacity, the elements of capacity and mutual present assent and intent to be husband and wife were joined and a valid common law marriage then and there arose and continued to exist until the death of Clyde J. Gillaspie on March 3, 1962. * * *'

Accordingly, an award of workmen's compensation was made in favor of Pearl Gillaspie and the minor children against the respondents for total death benefits.

On appeal, the district court, after considering the evidence, the argument of counsel and the briefs submitted, found there was sufficient evidence to support the finding of the workmen's compensation examiner. Judgment was entered in favor of Pearl Gillaspie and the minor children in accordance with those findings and the award of the workmen's compensation director, and respondents were ordered to pay the costs.

Was Pearl Gillaspie the legal widow of the decedent within the meaning of G.S.1949, 44-508(j)? The pertinent portion of that statute reads:

"Defendants' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. 'Members of a family,' for the purpose of this act, means only legal widow or husband, as the case may be, and children * * *.'

The question poses another, question: Was there a common-law marriage? The respondents argue that at most the claimant's evidence showed she and Gillaspie lived together as man and wife at a time when she knew they could not be married because of the six months' disability (G.S.1949, 60-1512), and that after her disability was removed, they lived together as a matter of convenience to each other until such time as they could be married in the future, and cite and rely upon Pitney v. Pitney, 151 Kan. 848, 101 P.2d 933. The argument is wide of the mark. Kansas has long recognized the validity of common-law marriage. It is noe necessary that we here detail the various elements of proof to establish the existence of the marriage but it may be said the basic elements essential in creation of such a relationship are a capacity to marry, a present marriage agreement, and a holding out of each other to the public as husband and wife. (State v. Hughes, 35 Kan. 626, 12 P. 28, 57 Am.Rep. 195; State v. Walker, 36 Kan. 297, 13 P. 279; Shorten v. Judd, 60 Kan. 73, 55 P. 286; Tyner v. Schoonover, 79 Kan. 573, 100 P. 478; Butler v. Butler, 130 Kan. 186, 285 P. 627; Jacoby v. Jacoby, 132 Kan. 77, 294 P. 857; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P.2d 276; Knollenberg v. Meyer, 151 Kan. 768, 100 P.2d 746; Cain v. Cain, 160 Kan. 672, 165 P.2d 221; Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593; In re Estate of Freeman, 171 Kan. 211, 231 P.2d 261; Burnett v. Burnett, 192 Kan. 247, 387 P.2d 195. The Pitney case, supra, is not helpful to respondents. There it was held that the findings of the trial court and the testimony of the plaintiff established that the parties had lived together in the same house as man and wife but that throughout the relationship the man had promised to have a marriage ceremony performed in the future. There was no present contract. There was also a failure of proof of any holding of each other out to the public as husband and wife. (Cain v. Cain, supra.)

In the instant case the district court found there was a valid common-law marriage, and the evidence abundently sustains the finding. The claimant was divorced from her former husband on May 28, 1961. Six days later, on June 4, 1961, she and Gillaspie presently agreed to be married despite the fact no marriage ceremony was performed. Pearl's union with Gillaspie was entered into in good faith and cohabitation was genuinely matrimonial in its inception on the part of both. They...