Luther v. M & M Chemical Co., Inc.

• Decision Date: 24 July 1985
• Citation: 475 So.2d 191
• Parties: Margaret LUTHER v. M & M CHEMICAL COMPANY, INC. Civ. 4711.
• Court: Alabama Court of Civil Appeals

Page 191

475 So.2d 191

Margaret LUTHER v. M & M CHEMICAL COMPANY, INC.

Civ. 4711.

Court of Civil Appeals of Alabama.

July 24, 1985.

Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.

James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen's compensation case.

Mr. Luther was killed in an accident while driving a vehicle for his employer. In paragraph one of her complaint the plaintiff, Margaret Luther, averred that she was the widow of Mr. Luther and was the person to receive workmen's compensation benefits arising out of his death. The employer's answer denied the allegations of paragraph one and admitted all other averments of the plaintiff's complaint. The critical issue in the case was whether a common-law marriage existed between the plaintiff and Mr. Luther. After very extensive testimony before the trial court, it was adjudged that the plaintiff did not establish that she was the common-law wife of Mr. Luther, and the plaintiff's complaint was dismissed. She appealed.

We summarize the evidence which concerned a common-law marriage between them.

The plaintiff testified that she and Mr. Luther were never ceremonially married, that they lived together for about nine months until his death on March 8, 1984, and that she had tried to be a wife to him. She waited on him when he had a broken leg, took care of him, cooked for him, washed his clothes, and treated him as if he were her husband. She told one lady that she and Mr. Luther were married. They attended church, ate, and visited his mother in a nursing home together. She further testified that Mr. Luther commenced introducing her to others as his wife about the second week that they lived together. The plaintiff and Mr. Luther established a joint bank account, from which their monthly bills were paid. The plaintiff would obtain Mr. Luther's check from his employer and deposit it to that account. Shortly before his death, Mr. Luther filed with his employer an insurance form which described the plaintiff as being his wife.

On the other hand, there was evidence which conflicted with the above. During the entire time that they lived together, the plaintiff received $307 each month in Veterans Administration benefits through a deceased former husband. She was also the recipient as an unmarried person of $11 monthly as rent money, and was furnished an apartment by a federal government program. Each of those benefits was of such a nature that it would terminate if she were married, and the plaintiff was aware of that but did not notify any of those agencies that she and Mr. Luther had married.

Neither the plaintiff nor Mr. Luther ever made known to Mr. Luther's two adult daughters or to his mother that they were married. To the contrary, four days before he was killed, the plaintiff told one of Mr. Luther's daughters that she and Mr. Luther were planning to be married, and the plaintiff showed to that daughter a new bed which they intended to christen following their marriage. On that same occasion, the plaintiff paid that daughter for some Tupperware with a check which she signed "Margaret Smothers," not Margaret Luther.

While the body of Mr. Luther was at the funeral home prior to burial, the plaintiff did not tell anyone in the presence of either of his two children that she was Mr. Luther's widow.

As was true in Kirkland v. Brantley, 380 So.2d 290 (Ala.1980), the record here is also without any direct proof that the plaintiff and Mr. Luther ever mutually agreed and consented by any words that they were husband and wife.

To establish a common-law marriage, there must be a present agreement or mutual understanding to enter into the marriage relationship, the parties must be legally capable of making the contract of marriage, and there must follow cohabitation as man and wife and a public recognition of that relationship. Further, the courts will closely scrutinize claims of common-law marriage and require clear and convincing proof thereof. Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982).

In a case where the issue was whether or not the petitioner was the widow as a result of a common-law marriage of the petitioner and the deceased, the trial court determined on conflicting testimony that she was not the widow. The Supreme Court of Alabama stated that "[t]he burden of proof rested upon petitioner appellant." Rogers v. McLeskey, 225 Ala. 148, 142 So. 526 (1932) (citation omitted). Thus, the initial burden of proof was here upon the plaintiff to reasonably satisfy the trial court by clear and convincing evidence that she was the widow of Mr. Luther. This she failed to do.

After reviewing all of the evidence, it is obvious that there was a factual conflict as to whether a common-law marriage existed between the plaintiff and Mr. Luther. Under those circumstances it was the function of the learned trial court to resolve that conflict and to reach a decision upon that issue which determination will not be reversed upon an appeal unless it was clearly erroneous. Harden v. Harden, 418 So.2d 159 (Ala.Civ.App.1982). The trial court declared that such a common-law marriage was not established. Because of the application of the ore tenus rule, we must presume that such a finding of the trial court was correct, and we are not authorized upon an appeal to set it...