Matthews v. Britton

• Decision Date: 19 April 1962
• Docket Number: No. 16498.,16498.
• Citation: 112 US App. DC 397,303 F.2d 408
• Parties: Ernestine MATTHEWS, Appellant, v. Theodore BRITTON, Deputy Commissioner, Bureau of Employees' Compensation, Aldon Construction Company, Inc., and New Amsterdam Casualty Company, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 397, 303 F.2d 408 (1962)

Ernestine MATTHEWS, Appellant, v. Theodore BRITTON, Deputy Commissioner, Bureau of Employees' Compensation, Aldon Construction Company, Inc., and New Amsterdam Casualty Company, Appellees.

No. 16498.

United States Court of Appeals District of Columbia Circuit.

Argued November 2, 1961.

Decided April 19, 1962.

Petition for Rehearing Denied May 18, 1961.

Mr. Joseph C. Waddy, Washington, D. C., with whom Messrs. William C. Gardner and William B. Bryant, and Larry C. Williams, Washington, D. C., were on the brief, for appellant.

Mr. Herbert P. Miller, Asst. Sol., Dept. of Labor, with whom Messrs. Charles Donahue, Sol., Dept. of Labor, David C. Acheson, U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty., were on the brief, for appellee, Britton.

Mr. William E. Stewart, Jr., Washington, D. C., with whom Messrs. Richard W. Galiher and Julian H. Reis, Washington, D. C., were on the brief, for appellees Aldon Const. Co., Inc., and New Amsterdam Cas. Co. Mr. Harvey B. Bolton, Jr., Washington, D. C., also entered an appearance for appellees Aldon Const. Co. and New Amsterdam Cas. Co.

Before Mr. Justice BURTON, retired,^* PRETTYMAN, Senior Circuit Judge, and BAZELON, Circuit Judge.

Petition for Rehearing En Banc Denied En Banc May 18, 1961.

Mr. Justice BURTON.

In this case the appellant, Ernestine Matthews, claims that certain death benefits are due her as the surviving commonlaw wife of Henry Matthews under the Longshoremen's and Harbor Workers' Compensation Act.¹ Her claim was heard by the Deputy Commissioner of the Bureau of Employees' Compensation in the United States Department of Labor. He found that she was not and never had been the lawful wife of Henry Matthews, under common law or otherwise. Consequently, he denied her the death benefits to which she claimed to be entitled. She then asked the United States District Court for the District of Columbia to set aside the Deputy Commissioner's order. That court denied her motion for summary judgment, but granted defendants' motion for summary judgment and dismissed the action. From that order Ernestine took this appeal.

The principal issue here is whether the Deputy Commissioner correctly applied existing law in finding that Ernestine was not the surviving wife of the deceased employee. For the reasons hereafter stated, we remand the case to the District Court with directions to submit it to the Deputy Commissioner for reconsideration in the light of this opinion.

The material facts are undisputed. Commencing in 1935 and terminating with the death of Henry Matthews in 1957, Ernestine and he lived together as though they were married to one another. For example, they cohabited and introduced each other as man and wife. They conducted business transactions on occasion in the name of Ernestine "Matthews." Thus there was substantial uncontradicted evidence of their cohabitation and of their reputation for living together as husband and wife. Ernestine testified that she had taken Henry Matthews "as her husband," and that he asked her to come and live with him "as man and wife" to which arrangement she agreed. She testified unequivocally that they considered each other to be husband and wife. However, in 1919, Ernestine had legally married one William Johnson and had remained married to him until he secured a divorce in 1951. In 1951 Ernestine and Henry Matthews knew that divorce proceedings had been instituted and that a divorce from William Johnson would be the likely result. But in the absence of a valid divorce, Ernestine's marriage to Johnson precluded any other lawful marriage by her, no matter how much she and Henry purported to be lawfully married or how much they acted as if they were married.

By judicial decision in the District of Columbia, common-law marriage is recognized. The question of its recognition was presented to this Court in Hoage v. Murch Bros. Const. Co., 60 App. D.C. 218, 50 F.2d 983 (1931). The Court at that time reasoned that, since marriage was a matter of civil law, no form of religious ceremony was required. It held that, inasmuch as the relevant Acts of Congress did not indicate a contrary intent, a marriage that was valid at English common law was similarly effective under the common law of the District of Columbia. Consequently, an agreement "per verba de praesenti to be husband and wife and consummated by cohabitation" was sufficient.²

Nevertheless, as long as the impediment of Ernestine's lawful marriage to Johnson existed, she and Henry Matthews could not lawfully be or become husband and wife. However, it is settled that if parties agree to be husband and wife in ignorance of an impediment to lawful matrimony, then the removal of that impediment results in a common-law marriage between the parties if they have continued to cohabit and live together as husband and wife. Parrella v. Parrella, 74 App.D.C. 161, 120 F.2d 728 (1941); McVicker v. McVicker, 76 U.S. App.D.C. 208, 130 F.2d 837 (1942). Similarly, in Thomas v. Murphy, 71 App. D.C. 69, 107 F.2d 268 (1939), this Court has held the same result obtains even if the parties have knowledge of the impediment at the time that they agree to be married. It is not to be expected that parties once having agreed to be married will deem it necessary to agree to do so again when an earlier marriage is terminated or some other bar to union is eliminated.

Appellees contend that this Court's recent decision in United States Fidelity & Guaranty Co. v. Britton, 106 U.S.App. D.C. 58, 269 F.2d 249 (1959), in effect overrules Thomas v. Murphy, supra. We do not agree. Not only was the Murphy case cited with approval in the Fidelity & Guaranty opinion,³ but this Court expressly noted in its opinion that the alleged wife did not testify that "there was mutual consent or agreement to marry at any time, nor that she had consented or agreed to be married."⁴ Thus the holding of that case is that if there was no agreement to be married, either before or after the removal of an impediment, no marriage can take place.

We are of the view that Thomas v. Murphy still constitutes the law of the District of Columbia. If Ernestine and Henry Matthews agreed to be married before the impediment was removed and continued thereafter to cohabit and live together as husband and wife, a common-law union between Ernestine and Henry was effected when Johnson was awarded the divorce. The record considered as a whole would support such a finding. However, the Deputy Commissioner, under the impression that the possibility of agreement prior to the removal of the impediment was irrelevant, made no findings on that matter; nor did he specifically find that Ernestine and Henry continued to cohabit and live together after 1951.

Accordingly, we reverse the order granting summary judgment and direct...