Michler v. Krey Packing Co.

• Decision Date: 08 December 1952
• Docket Number: No. 42450,42450
• Citation: 363 Mo. 707,253 S.W.2d 136
• Parties: MICHLER v. KREY PACKING CO.
• Court: Missouri Supreme Court

Page 136

253 S.W.2d 136

363 Mo. 707

MICHLER v. KREY PACKING CO.

No. 42450.

Supreme Court of Missouri, en Banc.

Dec. 8, 1952.

Herbert Ziercher, Clayton, Wayne C. Smith, Jr., Clayton, for appellant-claimant.

Baker & Reis, Ernest E. Baker and Robert C. Reis, St. Louis, for respondent.

Frank J. Lahey and W. E. Freeland, Members Industrial Commission of Missouri (John D. Steele, Jefferson City, of counsel), amicus curiae.

HYDE, Judge.

Appeal from the Circuit Court judgment affirming an award of the Industrial Commission in favor of employer and against claimant on her claim as dependent widow of deceased employee Engelbert Michler. There is no dispute as to Michler being killed by an accident arising out of and in the course of his employment. Sec. 287.120; statutory references are to RSMo 1949 and V.A.M.S. The decisive fact issue was whether claimant and Michler were ever married. Thus the principal question for decision on this appeal is whether a determination of this issue against claimant is 'supported by competent and substantial evidence upon the whole record.' Sec. 22, Art. V, Const. For the reasons hereinafter stated we think it is.

The evidence was heard by a referee under authority of Sec. 287.460. The referee found 'that the employee left surviving him at the time of his death as his widow, Lena Michler, the claimant herein, and that she is his sole and total dependent.' His award was $150 for burial expenses and $25 a week for 480 weeks. Upon review by the full Commission, the award of the referee was reversed and compensation denied. The finding of the Commission was: 'We find from all the evidence that Lena Michler, claimant herein, failed to prove that she was ever legally married to Engelbert Michler, deceased employee; that said claimant therefore failed to prove that she was a dependent of said employee within the meaning of the Missouri Workmen's Compensation Law.'

The facts in evidence, as stated in the opinion heretofore written herein in Division No. 2, which we adopt without quotation marks, and with some additions, are as follows:

Lena did not know how long she had known Michler or when shd had met him, she only definitely admitted to a year or so before they were married. She said that in 1939, prior to their marriage, he was living in a room on Bremen and she lived on Ninth Street, in St. Louis. She stated that the week in which the eighth day of June, 1939, fell was the week of his vacation from his employment with the Krey Packing Company and on that day, after considerable drinking in bars in St. Louis, they went to Illinois. Their original destination was a resort known as Long Lake or Pontoon Beach near the towns of Madison, Mitchell, Nameoki and Granite City in Madison County. She did not know when they started out that they were to be married, although she said: 'I know I thought I would be, anyhow.' She and Michler had discussed the subject and wanted to get married the year before but he did not have enough money to buy the furniture. She said 'we decided it when we got to ranting around.' She thought he had again mentioned the subject while they were yet in St. Louis, but between Madison and Mitchell he suggested getting married. In first testifying before the referee, she said that they left St. Louis about seven o'clock in the evening and went by interurban streetcar to Madison where they met some friends, Tony Vaginski, a tavern keeper, and his wife. There they had several drinks and between nine and ten o'clock went to Mitchell and there, in the next two hours, had several more drinks. By that time she 'had had too much to drink' and her memory was hazy, but, she said, they went to another tavern in Vaginski's car, she did not know where and had more drinks. About one or two o'clock they were drinking coffee in a restaurant, and after that, for about an hour, they were in a tavern in Nameoki, and finally they returned to Vaginski's tavern in Madison and had more drinks until about six o'clock in the morning when she and Michler returned to St. Louis.

Between Mitchell and Madison, Michler had said that they would get married but neither of them knew where to go and the Vaginskis told them to go to a minister in Nameoki. So about twelve o'clock, June 8, 1939, they went to a Baptist minister's home in Nameoki, Michler produced a license, and they were married. She did not remember the minister's name and could not describe him or his home. She signed the certificate, and so did Michler, the minister and the Vaginskis. She had the license or certificate for a number of years, but about three years ago Michler, in a fit of anger, tore it up and burned it. On cross-examination, she was reluctant to answer questions and finally walked out of the hearing. About thirty days later, her testimony was resumed. She then said that instead of returning to St. Louis the next morning they went to Long Lake, where there was a tavern, and spent the day, and possibly the night, at a resort operated by Mrs. Jones. When pressed for more accurate testimony as to all the taverns they had visited, how much they drank and where they spent the time she finally said, 'If you felt like I did you would not remember it, either.' In any event, when they returned to St. Louis for some time, according to her, she continued living at her address on Ninth Street and Michler lived in his room on Bremen.

When she testified the second time Lena said, instead of going to Illinois by streetcar, that they went in Michler's car and they and the Vaginskis went from place to place in his car. At the coroner's inquest upon Michler's death Lena testified that she and Michler were married, not on June 8, 1939, but on June 6, 1938 in a little town near Chicago. She said then that she had her marriage certificate and would produce it if necessary. The paymaster for the Krey Packing Company testified that the company had no paid vacations for employees in 1938; they did in 1939 and that year Michler took his vacation in October. The company's payroll records for the weeks which included June 6, 1938 and June 8, 1939 show that Michler worked forty hours each of those weeks, eight hours per working day. The week in which June 6, 1938 in included began on the 6th, on Monday, and the 8th day of June 1939 fell on Thursday. Lena did not take the required physical examination before obtaining a marriage license in Illinois. There is no record in the Madison County Clerk's office in Edwardsville of the issuance of a license to Lena and Michler or the return of a marriage certificate in accordance with the laws of Illinois. There is no Baptist Church in Nameoki (but there was one in nearby Granite City) and there is no Baptist minister in residence there. Mr. Curtiss, who had been the magistrate in Nameoki for sixteen years and who had authority to issue licenses and marry people, had no record of the issuance of a license to Lena and Michler, and had no record or knowledge of having married them. There was, however, another marriage license clerk in Granite City and one in Edwardsville, the county seat of Madison County. Neither Lena nor the employer produced anyone named Vaginski as a witness, but the employer produced Thomas Voloski, sometimes called 'Black Tony', a tavern keeper in Madison. He had kept a tavern there since 1942 and was acquainted with Michler; he had known Michler when they both worked for the Krey Packing Company, even before that, when Tony was delivering ice. Michler was a patron of Voloski's tavern, and usually had 'that lady' with him. Voloski did not know Lena's name, he did not know that Lena and Michler were married, and he did not go with them to get married. He had known the tavern keepers in Madison since 1936 and of the fifty-two then in Madison he had never known one whose name was Vaginski. Mrs. O. H. Jones who, with her husband, was the tavern keeper and resort owner at Long Lake did not know Lena but said that Lena and Michler did not spend a night at her place in 1939.

Michler once lived at 3614 N. 11th Street, some said in 1935 before he was divorced from his first wife, and some said that it was in 1936 after his divorce. The rooming house keeper who owned the property said that Lena and Michler lived there two or three years, 'Well, that was in 1938,--' 39, '37,--it was right along in there.' Lena insistently denied that she had ever lived at that address with Michler. Michler's adult son and daughter said that they visited their father at the 11th Street address in 1935 and from all appearances Lena was living there with him. She prepared meals for his son there. His lifelong friend, Henry Grothman, and Long Lake associate, said that Michler brought Lena to Long Lake in 1935 and that after his divorce in December 1936, from all appearances, he and Lena lived together on 11th Street. He said he and his wife went with Michler and Lena to buy furniture when they were living on 11th Street. As late as February 14, 1940, Michler applied for life insurance and in his application he was designated 'single' and his beneficiary was listed as Lena Miller, 'friend.' This application was taken at 3614 North 11th Street. The policy which was issued on this application was changed in 1945 to read 'Lena Michler, wife.' About the same time, an application was taken for another policy designating her as wife. The insurance agent, who took these applications, also collected the monthly premium payments from Michler. He said Lena was there when he took the 1940 application on 11th Street. He also said that later, when Michler was living in Jennings, he showed him a marriage license and said: 'Now you know we are married', but that he did not see what names were on it.

Lena said that, after living separately for a while, as soon as they could afford to buy furniture they moved to 619 Harris Street where they lived for about a year and a half. They then moved to 2649 Huiskamp Avenue in...