Griggs v. Pullman Co.

• Decision Date: 07 July 1931
• Docket Number: No. 21623.,21623.
• Citation: 40 S.W.2d 463
• Parties: GRIGGS et al. v. PULLMAN CO.
• Court: Missouri Court of Appeals

40 S.W.2d 463

GRIGGS et al. v. PULLMAN CO.

No. 21623.

St. Louis Court of Appeals. Missouri.

July 7, 1931.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Minnie Walker Griggs and Roxie Anna Griggs, claimants, opposed by the Pullman Company, employer. Award of the Compensation Commission denying Minnie Walker Griggs compensation, and awarding Roxie Anna Griggs compensation, was affirmed by the circuit court, and defendant appeals.

Affirmed.

Lehmann & Lehmann, of St. Louis, for appellant.

Bass & Bass and John Grossman, all of St. Louis, for respondent.

SUTTON, C.

This is an action for compensation under the Workmen's Compensation Act (Laws 1927, p. 490) for the death of Roosevelt Griggs. Plaintiffs both claim compensation as his widows. He was in the employ of the defendant, as a porter, at the time he received the injury which caused his death. There is no dispute that his death resulted from an accident arising out of and in the course of his employment. The commission found against Minnie Walker Griggs and in favor of Roxie Anna Griggs, awarding the latter compensation. Minnie Walker Griggs and the defendant appealed to the circuit court, where the award of the commission was, in all respects, affirmed. From the judgment of the circuit court affirming the award, the defendant appeals.

Defendant insists here that there is not sufficient evidence in the record to support the award of the commission.

The commission found that the deceased married Minnie Walker on December 9, 1920, in the city of St. Louis; that he lived with her about nine months; that they then moved from St. Louis to Memphis, at which place she left him, and returned to St. Louis, while he remained in Memphis; that she never lived with him thereafter; that after she returned to St. Louis she was running around with different men, and that a child was born to her in June, 1924, from her relationship with one Henry Nash; that Roxie Anna was married to deceased on June 27, 1926, in Crittenden county, Ark.; that deceased continued to live with plaintiff from the time of their marriage until his death; that their marriage was a valid marriage; that she survived him as his widow; and that he was under legal liability to support her at the time of his injury.

When a second marriage is shown, it is clothed with every presumption of validity. The law presumes innocence, not guilt; morality, not immorality; marriage, not concubinage. If the validity of the second marriage is attacked, the burden is on the attacking party to prove its invalidity, and if, in assuming this burden, which the law demands, it becomes necessary to prove a negative, he must do so. The presumption in favor of the validity of the second marriage is not to be lightly repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive. The invalidity of the second marriage cannot be found, unless the parties holding the burden of establishing it complete a chain of evidence which will aggressively exclude every indication or suggestion which might conceivably rescue the second marriage from invalidity. Johnson v. St. Joe Terminal Ry. Co., 203 Mo. 381, 101 S. W. 641; Nelson v. Jones, 245 Mo. 579, 151 S. W. 80; Woods v. American Coal & Ice Company (Mo. App.) 25 S.W.(2d) 144; Klein v. Laudman, 29 Mo. 259; In re Salvin's Will, 106 Misc. Rep. 111, 173 N. Y. S. 897; Hale v. Hale, 40 Okl. 101, 135 P. 1143; Schubert v. Barnholt, 177 Iowa, 232, 158 N. W. 662; Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. St. Rep. 513, 17 Ann. Cas. 673; Jackson v. Phalen, 237 Mo. 142, 140 S. W. 879; Phillips v. Wilson, 298 Mo. 186, 250 S. W. 408; Osmak v. American Car & Foundry Co. (Mo. Sup.) 40 S.W.(2d) 714, not yet reported [in State report].

Minnie Walker Griggs, at the hearing before the commission, testified in her own behalf as follows: "My name is Minnie Griggs. I live at 1426 N. Eighth Street, St. Louis, Missouri. I married Roosevelt Griggs December 9, 1920, at St. Louis, Missouri. I never did institute proceedings for a divorce against him. I was never served with any papers in a divorce action brought by Roosevelt Griggs against me. We lived together here in St. Louis immediately after our marriage for about six months or a year. Then we moved to Memphis, Tennessee, where I stayed with him for about two months, leaving him there and I came back to St. Louis. I left him because he ran around with other women. We corresponded back and forth. I would hear from him once or twice a week. Then after he came back to St. Louis he would visit me. About a year after I left him he sent me a ticket to come back to Memphis, but I did not go because I got an anonymous letter saying that I better not go back. He sent me money every week; ten dollars each week. During the year preceding his death he said that he was living with his aunt at 2026 Biddle Street. He never did mention the fact to me that he was married to anyone else. During this last year he would come down to see me twice or three times a week. I was then living at 3935 Cook Avenue. Roosevelt Griggs lived in Memphis from 1921 to 1928. I know a man by the name of Nash. He is not the father of my child. I have a little child. Her name is Bernice. I always told my husband her name was Bernice Nash. She was born in 1924. She was born in St. Louis. It was Griggs' child. I never did live with Henry Nash. I had intercourse with Nash a year or so before my child was born. My husband was then in Memphis. I told my husband about my having intercourse with Nash, and in spite of that fact he continued to send me $10 per week. He sent that money in cash. I do not know any man by the name of Russell. I did not go out with Nash nor did I go with him. Griggs would come here on different excursions. He never kept any of his clothes at my house. He never invited me to come down to his aunt. Some people call my little girl Nash and some call her Griggs. We call her Nash sometimes and sometimes we call her Griggs."

In her deposition, taken about two months after the death of the deceased, Minnie Walker Griggs testified as follows: "I left Memphis because I was sick. I did not have any children by Griggs. I did have one child. Its name was Bernice Nash. I was not married to Nash. The father of my child is ...