Gunter v. Dealer's Transp. Co., 17993

• Decision Date: 03 April 1950
• Docket Number: No. 17993,17993
• Citation: 91 N.E.2d 377,120 Ind.App. 409
• Parties: GUNTER v. DEALER'S TRANSP. CO.
• Court: Indiana Appellate Court

Page 377

91 N.E.2d 377

120 Ind.App. 409

GUNTER v. DEALER'S TRANSP. CO.

No. 17993.

Appellate Court of Indiana, in Banc.

April 3, 1950.

Thomas Corey, Indianapolis, Frank Hamilton, Greensburg, for appellant.

Murray, Mannon, Fairchild & Stewart, James L. Murray, Indianapolis, for appellee.

CRUMPACKER, Judge.

For some time prior to April 19, 1943, the appellant was the wife of one Jack Lucero of Los Angeles County, California. On said day she was granted an interlocutory judgment of divorce from Lucero by the superior court of said county upon which final judgment was rendered on the 21st day of April, 1944. After said interlocutory judgment was entered and before it became final she went to Yuma, Arizona, with one Odell L. Gunter where they procured a marriage license and were married by a justice of the peace in the presence of witnesses. Before this ceremony was performed the appellant explained to both the clerk who issued the license and to said justice of the peace, the status of her divorce from Lucero and was informed by each that her intended marriage would be legal anywhere but in California and there also after her divorce became final. After the ceremony she and Gunter went to Phoenix, Arizona, where he was stationed as a member of the U. S. Army Air Force and where they lived together as husband and wife until some time in April, 1944, when he was transferred to La Junta, Colorado. The appellant followed on April 20, 1944, and continued to live with Gunter as his wife until May 21, 1944, when he was sent to a military camp in North Carolina preparatory to being shipped overseas the following December. She did not accompany Gunter to North Carolina but went to Los Angeles where she remained until he returned from Europe in August, 1945. Upon his return they resumed living together as husband and wife until his discharge from the army on November 15, 1945. Gunter then went to Tucson, Arizona, to find work, expecting to send for the appellant when he found a job upon which he could support her. Still in quest of suitable employment he came to Indiana in 1946 and went to work for Dealer's Transport Company, the appellee herein, as a truck driver, and on September 9, 1946, he was killed as a result of an accident growing out of and in the course of such employment. From the date of their attempted marriage in Yuma, Arizona, in November, 1943, until Gunter's death they were each under the impression that said marriage was legal in all states but California and during all of said time conducted themselves as husband and wife and were so regarded in the communities where they lived. During all of the time Gunter was in the army the appellant received an allotment from the U. S. Government of $50 per month as his wife. She was designated as his wife in a policy of insurance issued by the government and up to three days before his death he wrote to her frequently, always addressing his letters to 'Mrs. Odell Gunter.'

The appellant's application to the Industrial Board of Indiana for compensation for Gunter's death was denied on the grounds that at the time of his fatal accident 'no valid marriage relationship, either ceremonial or common law, existed between the plaintiff and said decedent; that at said time the plaintiff was neither living with nor being supported by the said decedent, either wholly or partially within the meaning of the Workmen's Compensation Law of Indiana.'

The parties to this appeal agree that an interlocutory decree of divorce merely postpones the dissolution of the marriage until it becomes final and therefore the appellant was incapable of contracting a valid marriage at the time of the alleged ceremony at Yuma, Arizona, in November, 1943. They also agree that common law marriages are recognized in Colorado and Indiana but not in California or Arizona. It is apparent therefore that the appellant's residence with Gunter in Arizona, as man and wife, was illicit even though unintentionally so. The day after they moved to Colorado, a state where common law marriages are recognized, her divorce became final and no impediment to her marriage thereafter existed.

Thus it seems to us that the fundamental question for decision is this: Does cohabitation and reputation, after the removal of the impediment to the validity of a ceremonial marriage, contracted in the mistaken belief of both parties that it was legal, establish a valid common law marital status which came into being when the legal impediment ceased to exist? We find an exhaustive note on the subject in 104 A.L.R. 6, in which the author states the general rule announced by the courts of the United States, England, Canada and 29 of our sister states, including Colorado, to be as follows: 'If the parties desire marriage and do what they can to render the union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant, and continued after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent * * * after the removal of the impediment.' The rule is stated in 55 C.J.S., Marriage, § 36, p. 879, as...