Meade v. State Compensation Com'r

• Decision Date: 29 May 1962
• Docket Number: No. 12153,12153
• Citation: 125 S.E.2d 771,147 W.Va. 72
• Parties: Etta MEADE, Widow, etc., v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

Page 771

125 S.E.2d 771

147 W.Va. 72

Etta MEADE, Widow, etc., v. STATE COMPENSATION COMMISSIONER et al.

No. 12153.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1962.

Decided May 29, 1962.

Syllabus by the Court.

1. If a marriage is established, it is presumed to be valid, and the burden of adducing evidence to the contrary is on the one who attacks its validity.

2. If a marriage is shown to have existed at a certain time, such marriage is presumed to continue, in the absence of evidence of its termination by death or divorce, and the burden of adducing evidence to the contrary is on the one asserting such termination.

3. In case of conflicting marriages of the same spouse, a second marriage will be presumed to be valid and such presumption is stronger and is accorded greater weight than the presumption of the continuance of the prior marriage, inasmuch as it is presumed in favor of the second marriage that the prior marriage was terminated by death or divorce.

4. The general rule is that the validity of a marriage is determined by the law of the jurisdiction in which it was contracted or celebrated.

5. In a workmen's compensation proceeding, a marriage contracted or solemnized in Kentucky, which is made void by a statute of that state, cannot form the basis of a claim for compensation by one claiming, by reason of such marriage, to be the widow of the deceased workman.

6. 'An order of the Workmen's Compensation Appeal Board, affirming an order of the State Compensation Commissioner, which is not supported by the evidence and, for that reason, is plainly wrong, will be reversed and set aside by this Court.' Point 2 Syllabus, Flynn v. Compensation Commissioner, 141 W.Va. 445, 91 S.E.2d 156.

W. V. McNemar, Jr., Holden, for appellant.

R. L. Theibert, Charleston, for appellees.

CALHOUN, President.

This case involves an appeal from a decision and order of the Workmen's Compensation Appeal Board dated November 10, 1961, which affirmed an order of the Workmen's Compensation Commissioner dated June 12, 1961, by which Etta Meade, the claimant, was awarded benefits as a dependent widow and Elmer Douglas Smith, her son, was awarded benefits as a dependent stepchild of the deceased workman, Albert Meade. The primary question presented involves the contention of the employer, Island Creek Coal Company, that Albert Meade had a wife by a prior marriage, living and undivorced, at the time of his marriage to Etta Meade, the claimant, at Inez, Martin County, Kentucky, on July 3, 1952.

Albert Meade was fatally injured on October 30, 1959, in the course of and as a result of his employment by Island Creek Coal Company in West Virginia. Though employed in West Virginia, Albert Meade lived with Etta Meade as husband and wife continuously in Martin County, Kentucky, from the time of their marriage on July 3, 1952, until his death on October 30, 1959. Elmer Douglas Smith, a son born out of wedlock to Etta Meade prior to her marriage to Albert Meade, lived in the Meade household, and was supported by Albert Meade. He was born November 6, 1943, and has been in the United States Army since February 14, 1960. He is not denied the status of a 'stepchild' of Albert Meade merely because of the fact that he was born out of wedlock. Simpson v. State Compensation Commissioner, 114 W.Va. 814, pt. 1 syl., 174 S.E. 329.

The employer made a timely protest to the commissioner's order, which held the claim to be compensable, and, at the hearing subsequently held, undertook to establish that the marriage of Albert Meade to Etta Meade was void under an applicable statute of the State of Kentucky because his prior marriage to another woman then remained in full force and effect.

The position which the claimant took before the Workmen's Compensation Appeal Board and the position taken by her before this Court is twofold: (1) The validity or invalidity of a marriage alleged to be bigamous can be determined only by a court of record; and (2) in any event, the proof is insufficient to rebut the presumption of the validity of the marriage which is alleged by the employer to be bigamous. The Workmen's Compensation Appeal Board, as disclosed by its opinion, held that the commissioner had the authority to declare that the marriage was void by operation of the law of Kentucky if the proof were sufficient to establish that Albert Meade 'had a living wife' at the time of the marriage in question; but held, nevertheless, that the proof was insufficient to overcome the presumption of the validity of such marriage.

From the record there can be no question of the fact that Albert Meade was married to Carrie Catherine DePriest in Bath County, Virginia, on October 2, 1941. This appears by properly authenticated copies of the marriage license and the marriage certificate. A copy of Albert Meade's discharge from the United States Army, dated November 29, 1945, discloses that his home address at that time was Hot Springs, Virginia, and that he was then married. The record includes the deposition of Virginia D. Cleek, Clerk of the Circuit Court of Bath County, Virginia, in whose office the marriage license, marriage certificate and army discharge are recorded. In addition to her testimony in relation to such matters, she testified that Albert Meade instituted a divorce suit against Carrie Catherine DePriest Meade on May 8, 1946, but that such suit was not matured for hearing and no divorce decree was entered therein. Duncan M. Byrd, an attorney at law residing in Bath County, Virginia, stated that, while in the armed services in World War II, Albert Meade employed him to institute a suit for divorce against his wife, Carrie Catherine DePriest Meade; that such suit was instituted, but that Albert Meade did not return to prosecute such divorce suit to a conclusion. Attorney Byrd testified further that Etta Meade called him by telephone from Inez, Kentucky, to make inquiry concerning such divorce suit; and that within a few days thereafter she appeared at his office in person, at which time and place he explained to her that no divorce decree was ever entered in the suit which he had instituted in behalf of Albert Meade. Etta Meade admitted in her testimony that she went from Inez, Kentucky, to Hot Springs, Virginia, to inquire of Attorney Byrd in relation to the divorce suit, but she testified that she did not get any satisfactory information in relation thereto, except that there was no official record of such a divorce.

Etta Meade testified that Albert Meade, during his lifetime, resided in Mingo County, West Virginia; in Bath County, Virginia; and in Martin County, Kentucky; and that she had no knowledge or information of his ever having resided at any other place. The employer produced depositions of the county clerk having official custody of divorce records in each of the three counties named above to prove that Albert Meade had not been divorced in any of such counties in which he had resided.

The employer submitted depositions of James Thompson, Rosa Thompson, and Isom Spaulding, respectively, all of whom now live in Bath County, Virginia, but were natives of Mingo County, West Virginia, as was Albert Meade. Apparently, these three deponents were reared with Albert Meade in Mingo County, and were closely associated with him when he lived in Bath County. Each of the three testified that Albert Meade married Carrie Catherine DePriest in Bath County. James Thompson and Isom Spaulding testified that Albert Meade had stated to them that he commenced a suit for divorce from Carrie Catherine DePriest Meade, but that such suit was never prosecuted to a final conclusion.

An application for a social security number made by Albert Meade on September 10, 1947, represented that he was then married to 'Carrie DePriest.' The deposition of Carrie Catherine Criss was taken at Bel Air, Maryland, near her present place of residence in that state. She testified that she is the same person as Carrie Catherine DePriest who married Albert Meade, as stated earlier herein; that she consulted an attorney 'a couple of times', apparently in Maryland, relative to a proposed divorce from Albert Meade, but that no divorce suit was instituted in her behalf; that she never at any time obtained a divorce from Albert Meade, never received any sort of notice of any suit for divorce instituted by him, and that she had no knowledge or information of any divorce obtained from her by Albert Meade. She testified that a son born of her marriage to Albert Meade was nineteen years of age at the time she testified on April 7, 1961.

In her application for workmen's compensation, Etta Meade stated that she had been married and divorced before her marriage to Albert Meade, but that he had never been married previously.

The claimant offered no evidence whatsoever to rebut the proof submitted in behalf of the employer for the purpose of establishing that Albert Meade, at the time of his marriage to the claimant, had a wife by a prior marriage living and undivorced.

In support of the contention that the commissioner had no jurisdiction or authority to question the validity of the marriage of Etta Meade to Albert Meade, her counsel relies on the case of Sledd v. State Compensation Commissioner, 111 W.Va. 509, 163 S.E. 12, 80 A.L.R. 1424. The question presented therein was whether the widow of the deceased workman should be denied compensation because she had a husband by a prior marriage at the time of her marriage to the deceased workman. The Court in its opinion pointed out that at common law a bigamous marriage was 'absolutely void ab initio, and it was good for no legal purpose.' See also 55 C.J.S. Marriage § 17, page 831. The opinion proceeds to discuss the distinction between marriages which are absolutely void and those which are merely voidable, and observes that our statute has 'radically changed' the common law by providing: '* * * all marriages which are...