Lewis v. Department of Labor and Industries

• Decision Date: 12 July 1937
• Docket Number: 26692.
• Citation: 190 Wash. 620,70 P.2d 298
• Parties: LEWIS v. DEPARTMENT OF LABOR AND INDUSTRIES.
• Court: Washington Supreme Court

70 P.2d 298

190 Wash. 620

LEWIS v. DEPARTMENT OF LABOR AND INDUSTRIES.

No. 26692.

Supreme Court of Washington

July 12, 1937

Department 1.

Appeal from Superior Court, Mason County; D. F. Wright, Judge.

Proceeding under Workmen's Compensation Act by Florence Lewis claimant, opposed by the Department of Labor and Industries. From a judgment affirming the decision of the Department in denying claimant compensation, claimant appeals.

Affirmed.

Harold P. Troy, Julia Waldrip Ker, and Phil K. Eaton, all of Olympia, for appellant.

G. W Hamilton and J. A. Kavaney, both of Olympia, for respondent.

GERAGHTY Justice.

William Lewis was accidently killed August 24, 1935, while engaged in extrahazardous employment, as defined in the Workmen's Compensation Act (Rem.Rev.Stat. § 7675 et seq.).

Florence Lewis, claiming to be his widow, filed her application with the Department of Labor and Industries for compensation for his death. The supervisor rejected her claim on the ground that she was not the widow of William Lewis. The claimant's petition for a rehearing Before the joint board was granted, and, at the rehearing subsequently had evidence was introduced tending to establish the following facts material to the issue involved:

The claimant entered into a ceremonial marriage with William Lewis Before a minister, in the city of Olympia, on April 15, 1931; and, from that time until his death, the decedent and claimant lived together as husband and wife and were so known and recognized in the community in which they lived in Thurston county.

By stipulation of the parties, copies of the findings of fact, interlocutory order, and final decree in a divorce proceeding, instituted by Nellie Lewis, as plaintiff, against W. A. Lewis, as defendant, in Pierce county, in January, 1931, were introduced in evidence Before the joint board; and it is conceded that W. A. Lewis, named in the divorce action, was the William Lewis out of whose death the present controversy arises. The interlocutory order was entered February 17, 1931; the final decree, September 10, 1931. As we have seen, the marriage ceremony was performed April 15th, a little less than two months after the entry of the interlocutory order.

The claimant testified that she married William Lewis in good faith and without knowledge that he was a married man at the time the ceremony was performed. However, it appears that she had been acquainted with him for at least a year Before the wedding. She admitted that she knew he was a married man at the time they became acquainted, but stated that he had made several trips to Tacoma for the purpose, as he told her, of procuring a divorce; and that she thought the divorce had been obtained. Quoting her testimony:

'Q. And what give you any reason to think that he was divorced from his former wife? A. Well, I had heard him say that. He used to go to Tacoma some and when he would come back I heard him say, 'Well, I am free now,' and that he was glad of it, and those things like that. That is all I know of it.

'Q. In other words, you developed your understanding from what he told you? A. Yes, sir, what he said.

'Q. Did he ever exhibit to you his papers on the divorce from his former wife? A. No, I never saw anything.

'Q. Did he ever tell you when he was divorced from his former wife? A. No.

'Q. Did he ever tell you what year he was divorced from his former wife? A. No, he never.'

Nellie Lewis, plaintiff in the divorce proceeding, testified to her marriage to William Lewis and to their subsequent divorce. Examined with reference to an earlier marriage, she testified that, more than forty years Before , she had married a man by the name of David Cox in Spokane; that subsequently they removed to Canada and thereafter separated, but were never divorced; that many years after separating from Cox, and after she had returned to the United States, she made inquiry to ascertain whether her husband was still living, and was informed by the postmaster, to whom she addressed her inquiry, that he had died in British Columbia. She married William Lewis in Portland, Ore., in 1927.

After the joint board had affirmed the ruling of the supervisor, the claimant appealed to the superior court. The case was there heard on the departmental record, including the evidence taken by the joint board.

The court found as facts that William Lewis died as the result of an injury sustained in extrahazardous employment; that prior thereto he had gone through a marriage ceremony with the claimant, Florence Lewis, but that, at the time of the performance of the ceremony, he was married to another woman, from whom he had not been divorced; and that the department had not been arbitrary or capricious in disposing of the claimant's application for compensation.

A judgment was accordingly entered affirming the decision of the department; the claimant appeals.

Claimant's first contention is that, while she knew that the deceased had been previously married, her own marriage to him was in good faith on her part and in the belief that no impediment to a valid marriage existed at the time; and she cites cases from California and some other jurisdictions holding that a woman who, in good faith, lived with an employee, in the belief that she had been lawfully married to him, was entitled, as a dependent, to compensation for his death. These cases, however, turn upon the definition of the term 'dependent' contained in the effective statutes.

The California Workmen's Compensation Act of 1917 (St.1917, p. 844), § 14, provided:

'(a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

'(1) A wife upon a husband with whom she was living at the time of his death, or for whose support such husband was legally liable at the time of his death. * * *

'(b) In all other cases, questions of entire or partial dependency and questions as to who constitute dependents and the extent of their dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employee.'

In Temescal Rock Company v. Industrial Accident Commission, 180 Cal. 637, 182 P. 447, 448, 13 A.L.R. 683, it was held by the Supreme Court of California that where a woman, in good faith, lived with an employee as his lawful wife, believing that their marriage license in itself constituted marriage, she had no standing as his widow, but was entitled to recover for his death as a dependent 'member of his household' under the above-quoted subdivision (b), saying:

'Dolores Rodriguez does not come within the provisions of subdivision 1 of subsection (a). That part of the subsection includes only those who stand in the relation of husband and wife. Its language necessarily implies that the relation must be lawful, and therefore it excludes persons who, though not lawfully married, live...