Green v. Green, (No. 6627.)

• Decision Date: 30 November 1921
• Docket Number: (No. 6627.)
• Citation: 235 S.W. 980
• Parties: GREEN et al. v. GREEN.
• Court: Texas Court of Appeals

235 S.W. 980

GREEN et al. v. GREEN.

(No. 6627.)

Court of Civil Appeals of Texas. San Antonio.

November 30, 1921.

Rehearing Denied January 4, 1922.

Appeal from District Court, Bexar County; Robert W. B. Terrell, Judge.

Suit by Catherine Green against Louisa Green and others to set aside an award made by the Industrial Accident Board in favor of defendant Louisa Green. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

T. H. Ridgeway, of San Antonio, and H. T. Cooper, of Fort Worth, for appellants.

Allan V. McDonnell and G. B. Rogers, both of Waco, for appellee.

FLY, C. J.

This is a suit instituted by appellee against the appellants, Louisa Green, T. H. Ridgeway, and Miller's Indemnity Underwriters, to set aside an award made by the Industrial Accident Board in favor of Louisa Green for the death of Jerry Green, claimed by her to be her husband, who was accidentally killed while in the employment of the Texas Refining Company, a subscriber under the Employers' Liability Act of the state of Texas (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz. Ridgeway, an attorney for Louisa Green, had been awarded a portion of the award to his client by the Industrial Accident Board. The cause was submitted to a jury on two issues; one being the identity of the Jerry Green who married Catherine in Waco with the Jerry Green who married Louisa in San Antonio; and the other, that Catherine had not abandoned Jerry without just cause. The jury answered that it was one and the same man that had married both women, and that the abandonment was not without just cause, and judgment was rendered in favor of Catherine for $2,300, who had taken the first turn with Jerry in matters of matrimony, at least so far as this case is concerned.

The evidence of Catherine tended to show that she married a negro man named Jerry Green, in East Waco, in 1907, and that he had previously been married to Betty, who had died. Catherine lived with Jerry for two years, when he became ill and left to go to his sister in Navasota. He wrote only two letters to her. Catherine had two marital experiences prior to marrying Jerry. Catherine did not hear from Jerry after 1909, until she heard of his death in 1918. She said:

"I didn't know if he got well, but I just thought this; I said, `Well, if he died, she was a sorry sister-in-law if she wouldn't let me know;' but by him not coming back home I knew he wasn't dead."

She said he was 50 years old in 1907, which would make him 61 years old when he died.

It was shown by the testimony of Louisa that she took her first step in matrimony by marrying Jerry Green in December, 1916, in the city of San Antonio. At that time he was about 50 years of age, and was about 52 when he died. When she married him, he was hale and hearty.

The evidence tended to show that the Waco Jerry Green "was a low, chunky man, looked like a man of about 50" in 1907; that "he was a right black man, he was so black until his finger nails looked blue, but his hair was just as straight as could be." No description of the San Antonio Jerry was given. Although it was testified by Catherine that her Jerry had a sister, Ella Breedlove, and a brother-in-law named Dave Watson, neither of them was placed on the stand, and the evidence left in doubt as to whom the Industrial Accident Board Jerry belonged.

The vital question was whether the two Jerrys were really one and the same, and whether Catherine had lost any right, title, or interest by about 10 years of indifference to his welfare and happiness. Her interest became strong and burning when she learned that he was dead and had left money to which his wife was entitled.

The facts in this case, as given by Catherine alone, are that she was married to Jerry Green in 1907. No license was produced; no person present at the ceremony was called as a witness. The marriage rests in the first instance on her uncorroborated testimony. The evidence of his relatives, which Catherine said he had, was not produced as to any point in the case. Catherine testified:

"We were married in the courthouse in Waco, in McLennan county. Elder McJunkins married us; he was a white Baptist preacher. Jerry got the license in the courthouse. I and him went up to the courthouse, and he got the license, and we stood and married."

She was very uncertain and contradictory in her testimony. She testified on this trial that she got two letters from Jerry after he left to go to his sister at Navasota; but, being recalled, she testified:

"I had never heard from Jerry from the time he went to see his sister."

In Austin she swore she did not write to the sister, but on this trial swore she had written to her, asking about Jerry. The mind of Thomas was much illuminated...