Kelly v. Consolidated Underwriters

• Decision Date: 03 December 1927
• Docket Number: (No. 1619.)
• Citation: 300 S.W. 981
• Parties: KELLY et al. v. CONSOLIDATED UNDERWRITERS.
• Court: Texas Court of Appeals

Page 981

300 S.W. 981

KELLY et al. v. CONSOLIDATED UNDERWRITERS.

(No. 1619.)

Court of Civil Appeals of Texas. Beaumont.

December 3, 1927.

Rehearing Denied December 21, 1927.

Appeal from District Court, Orange County; V. H. Stark, Judge.

Proceeding under the Workmen's Compensation Act by Louisa Kelly for the death of her husband, Joseph Kelly, opposed by J. T. Ferguson, employer, and Consolidated Underwriters, insurer. On an appeal to the district court the award of the Industrial Accident Board was set aside, and claimant appeals. Remanded, with instructions.

O'Fiel & Reagan, of Beaumont, and D. C. Bennett, of Orange, for appellant.

C. A. Lord, of Beaumont, for appellee.

WALKER, J.

This is a compensation case, wherein J. T. Ferguson was the subscriber, appellee the insurer, and Joe Kelly the employee. On the 19th of January, 1926, Joe Kelly, while in the due course of his employment with J. T. Ferguson, received a compensable injury, from which he died. The Industrial Accident Board awarded appellant, as the surviving wife of deceased, compensation under our Workmen's Compensation Act (Vernon's Ann. Civ. St. 1925, arts. 8306-8309). From that award appellee prosecuted its appeal to the district court of Orange county, where, upon a trial de novo, the trial court instructed a verdict in its favor, setting aside the award of the Industrial Accident Board, and denying appellant compensation, on the theory that the undisputed evidence showed that she was not the wife of Joe Kelly at the time of his death.

Under the pleadings and evidence of appellee, the state of Louisiana does not recognize as valid what is known in Texas as common-law marriages; in that state only ceremonial marriages, solemnized in the manner prescribed by statutes regulating marriage, are valid; the living together and cohabitation as husband and wife of a man and woman not married according to the ceremonies and regulations prescribed by statute are illegal and meretricious in that state, and a contract to live together as husband and wife, without complying with the provisions of the statutes regulating marriages, is void.

In 1902, Joe Kelly and Louisa Lane, the appellant here, negro citizens of Louisiana living at Amelia, La., began living together and cohabiting as husband and wife, under an agreement that they would be husband and wife, on conditions that in Texas would have constituted a common-law marriage. Without ever contracting a ceremonial marriage, but living together under this agreement, they made their home at Amelia, La., from 1902 to 1920. During these years Joe Kelly worked about a year in each of the states of Florida, Alabama, Mississippi, and Texas. In all of these states it appears that common-law marriages are recognized on the same legal principles as in this state. While Joe was working in Florida, appellant visited him about three months, about two months in Alabama, about two months in Mississippi, and about one month in Texas. While visiting Joe, he received her as his wife, introduced her to his new friends as his wife, and they lived and cohabited as husband and wife, but their absence from Louisiana was only temporary, and during all these years they maintained their home at Amelia, La., recognizing that their absence from their home was only of a temporary nature, for the purpose of securing employment, and Louisa's visits to Joe were purely in the nature of visits, and without any intention whatever of acquiring a residence in any of those states.

Under the statement as made, the law of Louisiana declared the relations between Joe and appellant illegal and meretricious, and their temporary sojourn in the states recognizing common-law marriages did not convert their illegal relations into a lawful marriage.

In 1920, Joe Kelly had some trouble with appellant's sister, while he was living at Amelia, La. Thereupon he deserted appellant and left Louisiana, and appellant did not hear from him until 1925. At the time Joe Kelly deserted appellant, they were not husband and wife, and, as neither of them had previously married, they were single persons in the eyes of the law. A few months after Joe Kelly deserted appellant, she heard that he was dead, and in March, 1920, contracted a ceremonial marriage with one George Brown, under authority of a marriage license duly issued and duly executed, thereby becoming his lawful wife. Recognizing the validity of this marriage, she lived with George Brown at her home in Amelia, La., until 1925, when, learning that Joe Kelly was living in Beaumont, Tex., she deserted her husband and joined Joe Kelly at Beaumont in October, 1925, and lived with him continuously from that date as his wife until his death on the 19th of January, 1926. They resumed their relations with the intention of living together as husband and wife until their death. Joe Kelly introduced her to his Beaumont friends as his wife, and she acknowledged him openly as her husband. They lived and cohabited as husband and wife, and received their friends in their home as such, and their friends recognized them as husband and wife. The relations between Joe and appellant were such that, except for the fact that Louisa had a living husband, the law would have declared their status to be that of a common-law marriage. There is no evidence against that conclusion. But for the fact that George Brown, Louisa's husband, was living when she rejoined Joe Kelly in Beaumont, the conditions under which they resumed their relations would have made them husband and wife. George Brown died about Thanksgiving, 1925; but neither appellant nor Joe Kelly knew of that fact, and appellant had no knowledge of it until after Joe's death. The death of George Brown made no change in their relations. They made no new contract in relation thereto, but from October, 1925, when they reunited their lives in the city of Beaumont, Tex., there was no change in their relations until Joe's death in January, 1926.

On the facts stated, did the court err in instructing a verdict against appellant on the theory that she was not the common-law wife of Joe Kelly at the time of his death? We think this question must be answered in the affirmative. It is our conclusion that the undisputed facts, as a matter of law, constituted appellant the wife of Joe Kelly on January 19, 1926, the day he received the fatal injury. These negroes had lived together for almost 20 years. During all that time they had been to each other husband and wife, and were recognized as such by their friends. Joe performed all the duties of a husband, and Louisa those of a wife. Until Thanksgiving, 1925, the relations were illegal, but that was because of the bar interposed by law, and not because of a want of intent on their part. They wanted to be husband and wife. It was their express intent to be husband and wife. As they had no knowledge that the bar to their Texas common-law marriage had been removed, they did not and could not enter into a new contract on that basis. Yet on these facts we think because of the sanctity of the marriage relation, a sound public policy impels the law to infer consent "to have been given at the first moment when the parties were able to enter into the contract." Campbell v. Campbell, L. R. 1 H. L. 182. As they desired marriage, and intended their relations to be that of husband and wife, this continuing intent must be recognized during all the time they cohabited as such, and therefore the agreement upon which they renewed their relations made them husband and wife from the moment the bar to their lawful marriage was removed. As said in Townsend v. Van Buskirk, 33 Misc. Rep. 287, 68 N. Y. S. 512, it was immaterial whether they knew "of that removal * * * the fact being that it was removed, and their consent to the matrimonial relation may be inferred from their acts and conduct." Our conclusion on this proposition is based upon the dissenting opinion of Mr. Associate Justice Looney in United States Fidelity & Guaranty Co. v. Dowdle (Tex. Civ. App.) 269 S. W. 119, wherein he cited and reviewed the authorities cited by us, together with many others. In entering his dissent, Judge Looney said: "The courts of the country are by no means harmonious on this subject." Though the majority opinion in that case is supported by the highest authority, we believe Judge Looney's dissent is more in harmony with a sound public policy. As the Dowdle Case is the only authority from this state that has been called to our attention, we do not feel bound by the majority opinion, though we recognize the careful research and sound learning of the able judge who wrote it.

Davis v. Jeffords, etc. (Tex. Civ. App.) 261 S. W. 401, while not involving the exact proposition before us, is interestingly in point in its argument and in part on its facts. We have had the privilege of examining appellee's brief in that case, and note that many of the authorities relied upon by the majority of the court in the Dowdle Case were cited and ably reviewed by appellee in its brief in the Davis Case, yet the Galveston court refused to follow the argument of appellee, and the Supreme Court refused to take jurisdiction against their judgment.

It seems to us that Travers v. Reinhardt, 205 U. S. 423, 27 S. Ct. 563, 51 L. Ed. 865, is in point in its argument, and somewhat on its facts. In that case the able judge of the Supreme Court of the United States reviewed and gave controlling effect to the relations between the man and woman from 1865 to 1883, when they were living in an illicit and meretricious relation.

From what we have said, it follows that the judgment of the trial court in favor of appellee must be reversed and judgment here rendered in favor of appellant for compensation in the amount as per agreement filed.

Reversed and rendered.

On Rehearing.

Appellee insists that we are in error in holding that George Brown, the husband of Louisa Kelly, died about Thanksgiving, ...