Moffat Coal Co. v. Industrial Com'n

• Decision Date: 06 October 1941
• Docket Number: 14968.
• Citation: 108 Colo. 388,118 P.2d 769
• Parties: MOFFAT COAL CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

118 P.2d 769

108 Colo. 388

MOFFAT COAL CO. et al. v. INDUSTRIAL COMMISSION et al.

No. 14968.

Supreme Court of Colorado, En Banc.

October 6, 1941

Rehearing Denied Oct. 27, 1941.

Error to District Court, City and County of Denver; Floyd F. Miles Judge.

Proceeding under the Workmen's Compensation Act by Marie Todd and others, claimants, for death of Pete Todd, husband of named claimant, opposed by Moffat Coal Company, employer, and Employers' Mutual Insurance Company, insurer. An award of the Industrial Commission granting compensation was affirmed by the district court, and employer and insurer bring error.

Affirmed.

FRANCIS E. BOUCK, C.J., and HILLIARD, J., dissenting.

Hawkins & Hawkins and Horace N. Hawkins, Jr., all of Denver, for plaintiffs in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and Morry M. Sterling, Asst. Atty. Gen., for defendants in error.

KNOUS Justice.

This is a workmen's compensation case in which defendants in error Marie Todd, as widow, and Mary Ann Todd and La Veta Todd, as minor children, by order of the Industrial Commission, in accord with the previous action of a referee, were awarded compensation as dependents of Pete Todd, an employee of the plaintiff in error Moffat Coal Company, who met his death in an industrial accident. In an appropriate action the district court approved the award and plaintiffs in error here seek a reversal of the latter judgment.

The primary question is, whether there was sufficient competent evidence Before the commission to justify its finding that, as a result of a consummated common-law marriage, Marie Todd, the claimant, was the widow of the deceased employee Pete Todd. With this question resolved in the affirmative, the challenged status of the dependency of the minor defendants in error under section 340, chapter 97, '35 C.S.A., upon the theory of their illegitimacy, is eliminated from consideration.

Marie Todd was the sole witness at the hearing. No attempt was made to rebut or discredit her testimony and it appears therefrom without dispute that she and Pete Todd began cohabiting together as man and wife on May 15, 1936; that from such date the claimant continually has gone by the name of Marie Todd and that Pete Todd habitually introduced her as his wife. It likewise is unquestioned that as a result of this union two children were born, the first Mary Ann on September 7, 1937, and the second, La Veta May, on June 5, 1939; that since their birth, consistently with the certificates thereof admitted in evidence, both children have borne the surname of Todd. It may be inferred from the record that the couple and their children resided continuously at Oak Creek, Colorado, where claimant exercised the unrestricted right to charge goods to Pete Todd's account until July 19, 1939, when the two, with the children, went to California to visit claimant's parents. Pete came back to Colorado the latter part of August in that year. Claimant and the children did not return until after Pete's death. During the period of disjunction some correspondence passed between the couple. Pete sent some clothing for the children and made contributions in money for their support, the modesty in the amounts of which claimant accounted for by the fact of Pete's partial unemployment. As appears from a letter signed by the mine superintendent of the employer, which was admitted in evidence, Pete Todd in submitting compensation data to the employer for insurance purposes, named the claimant as his wife and beneficiary, asked that she be notified in case of an accident involving him, and also stated therein that he had two minor children. As being contradictory of this delineation of a typical common-law marital relationship and as precluding any legal finding of such from the evidence, plaintiffs in error rely upon certain statements made by claimant in the course of her direct examination by the referee. In particular the italized answers to the questions following are quoted by plaintiffs in error as examples of such deficiency:

'Q. Are you the widow of Pete Todd? A. Yes.

'Q. You and Pete Todd were never ceremoniously married? Is that so? A. No.

'Q. Did you live together as man and wife? A. Yes, sir.

'Q. And when did you begin that relationship? A. May 15th, 1936.

'Q. What was the understanding between you at that time? A. Well, I thought if he would come and live with me he would marry me, and he rept putting it off and he never did.

'Q. Then, you intended at some later date to be married? A. Yes.

'Q. You didn't consider you were married then? A. I couldn't because I wasn't.'

Plaintiffs in error contend that this testimony and other of similar import demonstrates: (1) That if there was an agreement between the two with reference to marriage, such agreement was one looking to a future marriage rather than one in praesenti; and (2) that regardless of what may be inferred from the whole evidence concerning Pete's intentions in the matter, the foregoing testimony discloses that claimant at no time consented to a marriage in praesenti with Pete Todd. Upon the first hypothesis plaintiffs in error conclude that the commission's finding of a common-law marriage legally was not warranted, because, quoting from section 1275, 38 C.J.: 'Marriage is an executed contract and is distinguished from the agreement or engagement to marry, looking to the future actual marriage.' In support of this contention also is cited the following excerpt from the opinion in Radovich v. Radovich, 84 Colo. 250, 269 P. 22, 23: 'It is true that a mere contract for a future marriage can never amount to a common-law marriage, even though followed by years of cohabitation, and that a plan for a future ceremony is sometimes incompatible with a present marriage * * *.' It is said the second postulate impels the result of the first, since: 'The consent of the parties must be mutual; where one party alone consents to the contract, there is no marriage.' 38 C.J. 1298, § 53.

As being corollary to the foregoing, it is further urged that the finding that claimant is Pete Todd's widow cannot stand because the evidence shows there...