Johnson v. Baker

• Decision Date: 04 April 1933
• Citation: 20 P.2d 407,142 Or. 404
• Parties: JOHNSON v. BAKER et al.
• Court: Oregon Supreme Court

20 P.2d 407

142 Or. 404

JOHNSON v. BAKER et al.

Supreme Court of Oregon

April 4, 1933

Department 1.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by Hannah D. Johnson against George L. Baker and others. From an adverse judgment, defendants appeal.

Affirmed.

Frank S. Grant, City Atty., of Portland (R. A. Imlay, Deputy City Atty., of Portland, on the brief), for appellants.

Harry G. Hoy, of Portland (Hoy & Doxey and Arthur E. Prag, all of Portland, on the brief), for respondent.

BELT, Justice.

This proceeding was instituted to review the decision of the board of trustees of policemen's relief and pension fund of the city of Portland, denying the application of the plaintiff for payment of pension under the provisions of the city charter (sections 296 to 309, inclusive). John W. Johnson was, on the 14th day of January, 1911, appointed to a position on the police force of the city of Portland, and continued in such service until the time of his death on February 6, 1932. On March 14, 1932, plaintiff, who claimed to be the widow of John W. Johnson, filed a written application with the board of trustees for payment of pension. Payment was denied, for the reason that the alleged marriage to Johnson was not established. Thereupon, after hearing in the circuit court, a writ was issued reversing the decision of the board of trustees, and the cause was remanded, with direction to pay the claim of the plaintiff. From such judgment, the defendants appeal.

The sole question is whether the evidence before the board of trustees warranted the legal conclusion that no valid marriage existed between the plaintiff and the deceased police officer. If plaintiff is the widow of Johnson, it is conceded that she is entitled under the charter "to receive a pension equal in amount to one-half the salary attached at the time of the death" of this police officer.

The record discloses uncontradicted evidence in substance as follows:

The plaintiff and John W. Johnson were married on the 19th day of September, 1929, on the high seas about fifteen miles off the mouth of the Columbia river. Mrs. Hannah C. Steelman, mother of the plaintiff, and James D. Bobbroff acted as witnesses to this wedding ceremony which was performed by H. C. Cassidy, captain of the gasoline boat Crescent. This party of four drove in the automobile of Bobbroff from Portland, Or., to Astoria where they were met by Capt. Cassidy, an old-time friend of the bridegroom. Plaintiff testified that she had been at Taft, Or., during the summer, and knew of several sea marriages, and that "we decided that was the way we would get married." The wedding ceremony was performed in the usual manner. Plaintiff said she placed her hand on the Bible when she and Johnson were pronounced man and wife. The record contains the affidavits of Mrs. Steelman and Bobbroff, who "stood up" as witnesses to the marriage. After the ceremony was performed and the greater part of the day was spent in fishing, the boat returned to Astoria, and the bridal party left for Portland. Plaintiff and Johnson lived together continuously in Portland as man and wife until the day of his death. According to various affidavits, some of which were made by members of the police force, Johnson always held the plaintiff out to the world as his wife. A certain percentage of his monthly salary went into the fund in question. So far as the record shows, no question was ever raised concerning the legality of the marriage until after Johnson's lips were sealed in death.

Relative to the question of good faith, the plaintiff testified that she did not know whether Capt. Cassidy was a "preacher or a priest of any kind," or that "he held any office that authorized him to perform the marriage ceremony," as his authority had never been questioned. She said: "There was never no doubt in my mind but what it was all right and I don't think there was in Mr Johnson's mind, because last fall he came home one day and he said, 'The old fellow that married us is dead.' I don't know whether he saw it in the paper or whether somebody told him or not. It was way last fall, months before he died." In one part of her testimony she stated that no marriage license was obtained but later she corrected such statement by saying, "For aught I know he may have obtained a license," and that she was "very sure that Mr. Johnson did whatever he thought was necessary to arrange and obtain for us a valid marriage."

We think it reasonable to infer from the evidence that this small boat Crescent, having a crew of only three or four men was owned by Capt. Cassidy, and that he resided in Oregon. Therefore, it follows that a marriage thus consummated on the high seas is to be tested by the law of this state. It is a well-established rule that a vessel upon the high seas is followed by the law of the nation or state in which its owner resides. Fisher v. Fisher, 250 N.Y. 313, 165 N.E 460, 61 A. L. R. 1523; Bolmer v. Edsall, 90 N. J Eq. 299, 106 A. 646. If the domicile of the parties to a marriage on the high seas is the deciding factor in determining the law applicable thereto, as apparently held in Norman v. Norman, 121 Cal. 620, 54 P. 143, 42 L. R. A. 343, 66 Am. St. Rep. 74, and in Holmes v. Holmes, F. Cas. No. 6638, the marriage...