King v. McCoy Bros. Lumber Co.

• Decision Date: 26 October 1962
• Docket Number: No. 9765,9765
• Citation: 147 So.2d 77
• Parties: Angie Jones KING, Plaintiff-Appellant, v. McCOY BROTHERS LUMBER COMPANY, Inc., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 77

147 So.2d 77

Angie Jones KING, Plaintiff-Appellant, v. McCOY BROTHERS LUMBER COMPANY, Inc., et al., Defendants-Appellees.

No. 9765.

Court of Appeal of Louisiana, Second Circuit.

Oct. 26, 1962.

On Application for Rehearing Nov. 29, 1962.

E. L. Edwards, Jr., Many, for appellant.

Simon & Carroll, Shreveport, for appellees.

Before HARDY, GLADNEY and BOLIN, JJ.

HARDY, Judge.

This is a compensation suit by the surviving spouse of Mack King, who was allegedly fatally injured while employed by defendant, McCoy Brothers Lumber Company, Inc. The employer's insurer was joined as a party defendant. An exception of no cause nor right of action and a plea of prescription were interposed by defendants. After the taking of evidence on the exception of no right of action there was judgment sustaining the same and dismissing plaintiff's suit, from which judgment she prosecutes this appeal.

The exception is based upon the contention that the plaintiff was neither the legal nor the good faith putative wife of the decedent. There is no real ground for dispute as to the applicable legal principles and the primary issue presented by this appeal is factual and relates to a determination as to whether the record sustains the conclusion that plaintiff's alleged marriage to decedent was made in bad faith.

Counsel stipulated certain facts in connection with the claim of this plaintiff originally asserted in Texas. McKinley King--more commonly known as Mack King--suffered an accident in Shelby County, Texas, on May 23, 1957, resulting in instantaneous death, while allegedly employed by McCoy Brothers Lumber Company, Inc.; plaintiff filed a claim for compensation benefits with the Industrial Accident Board of the State of Texas on August 24, 1957, which was dismissed by said agency on September 16, 1957; plaintiff filed suit in the District Court of Shelby County, Texas, against Consolidated Underwriters, as the insurer of decedent's employer, on September 25, 1957, and was awarded judgment for compensation, which judgment on appeal, was affirmed by the Court of Civil Appeals on December 17, 1958; writ of error was granted by the Supreme Court, which rendered judgment on June 10, 1959, reversing the judgment appealed from and remanding the suit to the trial court with instructions for dismissal of plaintiff's claims; plaintiff's application for writ of certiorari to the Supreme Court of the United States was denied on December 14, 1959, and this suit was instituted in the District Court of De Soto Parish on January 20, 1960.

On trial of the exception of no right of action, it was established that plaintiff's alleged marriage to Mack King was her fourth marital venture. She was first married to one Jim Turner, which marriage was terminated by a divorce procured by the husband; thereafter plaintiff married Charley Partner, with whom she lived until he was sentenced to the penitentiary; plaintiff testified that, believing Partner was dead, on the basis of purely hearsay information, she subsequently married L. C. Jones in 1937, with whom she lived for a period of years in the State of Texas and from whom she separated and returned to reside in De Soto Parish; in October, 1942, plaintiff received a copy of a petition for divorce which had been filed by Jones in the District Court of Angelina County, Texas; after consultation with her lawyer in Mansfield plaintiff executed a waiver of citation and consent to the divorce on October 24, 1942, and two days later married the decedent; the judgment of divorce in favor of Jones was granted on March 27, 1943.

On the basis of the establishment of the above facts, and in consideration of the testimony with reference thereto, the trial judge, for reasons assigned in a written opinion, concluded that plaintiff's bad faith in connection with her alleged marriage to the decedent barred her from recovery of compensation.

Counsel for appellant assigns error on the part of the trial court in holding that plaintiff was not in good faith at the time she married the decedent, Mack King, and, in support of this complaint as to the conclusion reached, urges that the court failed to accord legal presumption of good faith, and, further, that the burden of proof was upon the party attacking plaintiff's asserted status of legal or putative wife, which burden was not discharged by the defendants in this case.

The identical points as to the effect of a legal presumption of good faith and the burden of proof in cases of this nature have recently been thoroughlydiscussed in an opinion of this court in Succession of Davis, La.App., 142 So.2d 481. The conclusions reached by the court in the cited case, after consideration of the jurisprudence bearing thereon, were, first, that the presumption of good faith under LSA-C.C....