King v. Keller

• Decision Date: 03 February 1960
• Citation: 117 So.2d 726
• Parties: Mary Lee KING, Petitioner, v. Mary O. KELLER, Dade County Port Authority, Bituminous Casualty Corporation, and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 726

117 So.2d 726

Mary Lee KING, Petitioner, v. Mary O. KELLER, Dade County Port Authority, Bituminous Casualty Corporation, and Florida Industrial Commission, Respondents.

Supreme Court of Florida.

Feb. 3, 1960.

Snyder & Young, No. Miami Beach, for petitioner.

Lon M. Hudnall, Lally & Miller, Miami, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.

O'CONNELL, Justice.

In this case two women claim compensation benefits as the surviving spouse of the deceased employee. The Deputy Commissioner was of the opinion that the respondent Mary O. Keller, deceased's first wife, was entitled to such benefits. Petitioner Mary Lee King, deceased's second wife, seeks review of the order of the Full Commission affirming the Deputy's order.

The decedent Harry Keller, alias Henry King, married respondent in 1910. They lived in the City of Pittsburgh, Pennsylvania. Three children were born to them. In 1923 the decedent and his wife separated; he paid support money for her and the children, under an agreement, until 1925, when he disappeared, reportedly with a married woman. Mary Keller thereupon took out a support warrant against him, but this warrant was never served.

Decedent then changed his name from Harry Keller to Henry King. While respondent continued to reside in Pittsburgh, always in the same ward thereof, decedent moved about frequently. Allegedly, he lived in several states and countries before his death in 1956, which occurred while he was residing and working in Dade County, Florida. His death was occasioned by an accident arising out of and in the course of his employment by the respondent, Dade County Port Authority.

In 1948 decedent and the petitioner, Mary Lee King, went through a civil marriage ceremony in South Carolina. They lived together until his death in 1956.

The respondent workmen's compensation carrier for the decedent's employer paid to petitioner survivor's benefits for some weeks, but ceased to do so when respondent Mary Keller filed her claim to such benefits.

In her attempt to substantiate her claim that she was the surviving wife of the decedent, respondent Mary Keller presented in evidence certain letters and certificates from the clerks of various courts in several counties of various states in which the decedent had lived. These statements were all to the effect the records of the subject county had been searched and they revealed no evidence of a divorce proceeding involving Harry or Henry Keller by or against Mary O. Keller. Included were statements from clerks of courts in Pitt County, South Carolina; Parish of Orleans, Louisiana; County of Cuyahoga, Ohio; Dade County, Florida; Adams County, Washington; and the County Clerk, Los Angeles, California.

Petitioner testified on cross-examination that the deceased told her he had been born in Oregon and had lived in California, Mexico, Ohio, Pennsylvania, Washington, Arizona, Canada and Utah. Then, on redirect, she said he had told her he had lived all over the Northwest, visited most of the states and lived in and visited other countries as well. As can be seen, some of the states in which the decedent purportedly lived were not represented by the respondent's certificates of search of divorce records. Further, respondent did not present a similar certificate from the bureau of vital statistics of any of the states in which decedent is supposed to have lived. Such bureaus, in those states having them, usually record all divorce decrees granted in any county within that state. For instance, respondent submitted only a certificate of search from Dade County, Florida, but none from the Florida State Bureau of Vital Statistics, which bureau records all such decrees granted in any county in this state.

Respondent also testified that although she had continued to live within the same ward in Pittsburgh, Pennsylvania subsequent to her separation from her husband in 1923, she had never been served with notice of any divorce proceeding filed by the deceased. She stated she had never sued for divorce. In a deposition, submitted into evidence, the son of the respondent and the decedent, who had been in contact with his father off and on during the 30 odd years following his parents' separation, testified he knew of no divorce between his parents.

The Deputy stated that 'checking with the various counties and localities where the decedent has lived during this period of separation to the time of his death discloses that no action for a divorce was ever undertaken by decedent or Mary Keller.' He felt respondent had by a preponderance of evidence overcome the presumption of validity ordinarily attaching to the latest of two or more marriages.

Upon review, the Full Commission was of the opinion the Deputy's findings were supported by competent substantial evidence and approved the award of survivor's benefits to the respondent Mary Keller, decedent's first wife.

The sole question presented to us is whether the respondent presented substantial, competent evidence sufficient to overcome the presumption of the validity of decedent's marriage to petitioner.

It is undisputed that a presumption of validity attaches to one's last marriage. Cater Furniture Co. v. Banks, 1943, 152 Fla. 377, 11 So.2d 776. In Teel v. Nolen Brown Motors, Inc., Fla.1957, 93 So.2d 874 and in Johnson v. Johnson, Fla.1951, 51 So.2d 421 this presumption is referred to as 'one of the strongest known to the law.'

Petitioner's argument is that the instant case should be governed by the doctrine enunciated by this Court in Teel v. Nolen Brown Motors, 93 So.2d 874, supra. In that case we were of the opinion that, under somewhat similar circumstances, the first wife, while not required to eliminate every remote possibility that a divorce might have been secured by her husband, should establish the absence of any reasonable probability he did. There, we ruled that the first wife should have made a more exhaustive search of the public records than a search limited to one county in this state. There was evidence the husband had lived in the State of Georgia as well as Florida. We said, at 93 So.2d, page 876:

'Conceivably there may be situations where the courts would necessarily have to rely on the uncorroborated testimony of the one attacking the second marriage. However, in this day of well-kept public records covering vital statistics, such as, births, marriages and divorces, we feel that to the extent possible the public records available should be exhausted in an effort to establish the fact of divorce or the absence of a divorce as the case may be. In this case, for example, we judicially know that the State Bureau of Vital Statistics is the...