Hewitt v. Firestone Tire & Rubber Co.

• Decision Date: 10 June 1980
• Docket Number: Civ. A. No. 79-0267-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nancy Anne HEWITT etc. v. FIRESTONE TIRE AND RUBBER COMPANY.

490 F. Supp. 1358

Nancy Anne HEWITT etc. v. FIRESTONE TIRE AND RUBBER COMPANY.

Civ. A. No. 79-0267-R.

United States District Court, E. D. Virginia, Richmond Division.

June 10, 1980.

Robert L. Harris, James S. Gilmore, III, Richmond, Va., for plaintiff.

William H. King, Jr., William H. Robinson, Jr., Clinton W. Calhoun, Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This diversity action is before the Court for approval of a settlement pursuant to Virginia's Death by Wrongful Act, Va.Code § 8.01-55 (Repl.1977). Two questions are raised. The first requires the Court to determine which of two claimants is the decedent's surviving spouse. The second, which in part is dependent upon the first, requires the Court to determine whether the amount of the settlement is fair and just and, if so, how the settlement funds should be distributed and apportioned among the several beneficiaries.

I

On 14 June 1966 John Carthel Hewitt, a twenty year old soldier in the United States Army, married Barbara Anne Cullum, also twenty, in Texas. John and Barbara resided together as husband and wife through December, 1966, but thereafter were separated when John was confined in a penitentiary. During the term of his confinement, one year, John saw his wife infrequently and otherwise communicated with her only by mail.

Upon his release from prison in December 1967 John was sent to South Vietnam by the Army. He returned to the United States on thirty days' leave in March of 1968, and spent that leave with his wife in Paris, Texas. During this time John and Barbara's first child was conceived; John Carthel Hewitt, Jr., was born on 27 November 1968.

John returned to South Vietnam in April 1968 and remained there until a new duty assignment in January 1969 brought him stateside. John and Barbara lived together in Aberdeen, Maryland, from March 1969 until August 1969, when they returned to Texas. The couple stayed in Texas until September 1969 when John suddenly deserted his wife and family. When John left Barbara she was several months pregnant with their second child, Larry Dwayne Hewitt, who subsequently was born on 3 March 1970.

Barbara next heard from John in December 1969 when he telephoned from an unspecified location. In this conversation John stated that he cared for Barbara but that he would not return home. John further told Barbara, falsely, that financial support would be forthcoming. Neither Barbara Hewitt nor any of her children ever received financial support, emotional support, or any other form of support from John after September 1969.

The last time Barbara talked to John was in August of 1973 when she called him about a divorce.¹ In the course of the telephone call, John, according to Barbara, assented to a divorce. John allegedly told Barbara to have a lawyer "draw up the papers" and send them to him. He said he would then "sign the papers" and return them to the lawyer with his fee. Barbara stated that she saw a lawyer, that the lawyer drafted pleadings and mailed them to John, but that John never returned either the papers or the fee. Barbara could not recall the name or location of the office of the attorney she purportedly visited.

In October 1969 John had met Nancy Anne Threatt. She was single, twenty-four years old, living and working in Aberdeen, Maryland. On 26 December 1969, after a brief courtship, John and Nancy were married in Fayetteville, North Carolina, at the home of Nancy's parents. Nancy and her parents were aware of John's previous marriage and of his child, John, Jr. John represented to Nancy and her family, however, that his first marriage had ended in divorce. Nancy Threatt married John in good faith, unaware of any legal impediment that prohibited John from entering a second marriage.²

John and Nancy lived together continuously from the time of their marriage until John's death some eight years later. They lived first in Aberdeen, Maryland, and then in Hopewell, Virginia. They had three children. Ronald Wayne Hewitt was born sometime in 1972, William David Hewitt in July 1973. A third child died of accidental drowning. Although the first years of the marriage were trying, in time the relationship grew secure and John proved to be an attentive, faithful, and devoted husband and father. He provided well for his family out of his earnings as an over-the-road truck driver.

On 17 November 1977 John Carthel Hewitt was killed when his tractor-trailer truck left the road and overturned near Woodbrudge, Virginia, in Prince William County. At the time of his death John Hewitt was thirty-one years of age, in good health, and gainfully employed as a truck driver by Great Coastal Transport Corporation, a trucking concern located in Richmond, Virginia.

Barbara learned of John's death and immediately, within a month, filed an application for social security benefits as his widow. Cognizant of John Hewitt's later marriage to Nancy, the Social Security Administration sought information as to the existence of a decree of divorce dissolving the marriage of John and Barbara Hewitt. No decree was located. On this basis, the Administration awarded widow's, as well as surviving children's benefits, to Barbara Hewitt and her family. She currently receives $823.00 per month in social security benefits.

In March 1979 suit for damages for the wrongful death of John Carthel Hewitt was commenced in this Court. The complaint was filed by Nancy Anne Hewitt and Jerome L. Lonnes as co-administrators of the Estate of John Carthel Hewitt. After extensive discovery and negotiations the parties reached a settlement. Pursuant to Virginia statute, the parties tendered the terms of the settlement to the Court for its approval. Va.Code § 8.01-55 (Repl.1977). By its terms, the defendant Firestone Tire and Rubber Company, while denying liability agreed to pay $400,000 to the administrators for a release of all claims against Firestone arising from John's death.

After reaching and submitting the settlement to the Court, counsel for the co-administrators learned and informed the Court about John's earlier marriage to Barbara and of his children by that marriage. Thus advised that there might be conflicting claimants to the settlement proceeds, the Court appointed guardians ad litem for the two sets of children, ordered notice by publication, and set the matter for an evidentiary hearing to determine the rightful beneficiaries, the propriety of the settlement, and the fair distribution of the funds. The $400,000 previously placed in the registry of the Court was deposited into an interest-bearing account.

A hearing was held on 31 March 1980. All parties were represented by counsel except Nancy Hewitt in her individual capacity. All parties, including Nancy, sought approval of the $400,000 settlement notwithstanding the existence of the additional claimants not contemplated when the settlement was reached. The parties also sought a judicial determination of the rightful beneficiaries and how the settlement funds should be distributed.

II

Virginia's Death by Wrongful Act statute, a direct descendant of Lord Campbell's Act, provides that damages shall be distributed to "the surviving spouse . . and children of the deceased . . .." Va.Code § 8.01-53 (Supp.1979).³ This statute serves also as a guide for a court disbursing funds after a claim for death by wrongful act is compromised. Va.Code § 8.01-55 (Repl. vol. 1977). The classes of beneficiaries named in the statute are exclusive; a court is not at liberty to consider additional or alternative beneficiaries. Matthews v. Hicks, 197 Va. 112, 120, 87 S.E.2d 629, 634 (1955); Porter v. Virginia Electric & Power Co., 183 Va. 108, 113, 31 S.E.2d 337, 339 (1944).

In the case at bar two women, Barbara Hewitt and Nancy Hewitt, claim to be the surviving spouse of John Carthel Hewitt. Both cannot be. See Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879); Va.Code § 20-38.1 (Supp.1979). Accordingly, the Court must determine which of the two claimants is the surviving spouse and rightful beneficiary.

In Virginia, as in most jurisdictions, a presumption exists that a marriage last-in-time is valid, and that any prior marriage was terminated by death or divorce.⁴ This presumption is strong but rebuttable. While the party challenging the legality of the second union need not "make plenary proof of a negative averment," he must, in order to shift the burden, introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the former marriage was not dissolved. De Ryder v. Metropolitan Life Insurance Co., 206 Va. 602, 607-08, 145 S.E.2d 177, 181 (1965); Parker v. American Lumber Corp., 190 Va. 181, 186, 56 S.E.2d 214, 216 (1949).⁵

In an effort to rebut the presumption favoring the validity of John Hewitt's second marriage, Barbara Hewitt makes two factual arguments. Barbara states, first, that she talked to John about a divorce in 1973—four years after his marriage to Nancy. Barbara asserts that during a telephone conversation John assented to a divorce, and instructed Barbara to have a lawyer "draw up the papers" and forward them to him. Barbara has testified that in fact she saw a lawyer and that the lawyer drafted divorce papers and mailed them to John. The implication is that John, by agreeing to a divorce, recognized that he was still married to Barbara—and thus that his second marriage was bigamous and void.

The Court acknowledges that recognition of a continuing marriage by both parties thereto, subsequent to a second marriage by one of the parties, may amount to evidence sufficient to overcome the presumption that the first marriage was terminated. E. g., Jones v. Case, 266 Ala. 498, 97 So.2d 816 (1957); Travelers Insurance Co. v. Lester, 73 Ga.App. 465, 36 S.E.2d 880 (1946).⁶ Indeed, if the Court had evidence which would lend credibility to Barbara's testimony about the 1973 phone call, the...