Parker v. American Lbr. Corp.
| Decision Date | 21 November 1949 |
| Docket Number | Record No. 3563. |
| Citation | 190 Va. 181 |
| Parties | MOLLIE D. PARKER v. AMERICAN LUMBER CORPORATION AND OTHERS. |
| Court | Virginia Supreme Court |
Present, Hudgins, C.J., and Spratley, Buchanan and Staples, JJ.
(1) Marriage — Evidence — Statements on Application for License Not Prima Facie Evidence.
(2) Marriage — Evidence — Presumption and Burden of Proof as to Validity of Second Marriage.
(3) Marriage — Evidence — Presumption as to Validity of Second Marriage Rebuttable.
(4) Presumptions and Burden of Proof — Presumptions of Law — Continuing Effect.
(5) Marriage — Evidence Insufficient to Rebut Presumption That Party to Second Marriage Was Divorced.
1. The provision in section 5074 of the Code of 1942 (Michie), regulating the issuance and return of certificates of marriage, that when the certificate of the minister is recorded, the record thereof shall be prima facie evidence of the facts stated therein, applies to the minister's certificate, and does not include statements made in the application for the marriage license.
2. Where two marriages of the same person are shown, the second marriage is presumed to be valid, and such presumption is stronger than and overcomes the presumption of the continuance of the first marriage, so that a person who attacks a second marriage has the burden of producing evidence of its invalidity. Where both parties to the first marriage are shown to be living at the time of the second marriage, it is presumed in favor of the second marriage that the first was dissolved by divorce. These presumptions arise, it is said, because the law presumes morality and legitimacy, not immorality and bastardy.
3. The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is known as a "rebuttable presumption", and the one contending against the legality of the second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter testimony, will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary.
4. Where a presumption of law is a true rule of law assigning a prima facie force to an inference of fact, i.e., is properly a presumption of law, the basic inference of fact at all times remains to exert its full logical effect in the case.
5. In applying for compensation as the widow of a decedent who died of an injury received in the course of his employment, appellant untruthfully denied knowledge of his previous marriage. Her marriage to him was duly proved and the license showed her to be single (although she was a widow) and him to be divorced. His former wife testified that she had not divorced him or had any notice of any divorce obtained by him, but she had married again within two and a half years of their separation and was living with her second husband when decedent married appellant and when he died. In the period of their separation the first wife made no claim that decedent was her husband and neither saw nor heard from him except once when he came to see their children. Appellant was improperly denied compensation, as the issue was to be decided not on her statements, but on the weight of the presumption that the second marriage was valid, coupled with decedent's sworn statement on the marriage license that he had been divorced, as against the statements of his first wife and her subsequent conduct. The evidence adduced was not sufficient to overcome the presumption that he was divorced and support the finding that he was not.
Appeal from an order of the Industrial Commission of Virginia.
The opinion states the case.
Thomas L. Woodward and John H. Fulcher, for the appellant.
John J. Wicker, Jr., Paul M. Shuford and W. W. Jones, for the appellees.
The Industrial Commission has denied compensation to the appellant, Mollie D. Parker, as the widow of Hezekiah Parker, and on this appeal the question presented is whether she was legally his wife.
Hezekiah Parker died March 5, 1948, as the result of an injury suffered in the course of his employment. The appellant filed an application for a hearing claiming compensation as his widow and sole dependent. In it she stated that the case could not be settled by agreement because She had apparently stated to the employer that her husband had four children.
At a hearing on June 2, 1948, she filed a certified copy of a marriage license showing her marriage to Parker on August 23, 1941, in Northampton county, Virginia. She then testified that she had thought these children were her husband's, but after his death his brother told her they were the brother's children, and that the children she referred to were all grown. She first met her husband, she said, in Conway, North Carolina, about five years before they were married; that he was not married at that time and to the best of her knowledge and belief he had never been married before. Two other witnesses testified that Parker had said he had never been married before he married Mollie, and that he had never said anything about having children. There were no children of his marriage with Mollie.
As a result of this hearing an award was made to Mollie as the widow and only dependent of the deceased. Subsequently Sylvia Hill filed an affidavit stating that she had married Parker on August 4, 1923, in Edgecombe county, North Carolina, filing a certificate of marriage to Carl Parker, who was the same person as Hezekiah Parker, she said; that nine children were born of this mariage, two of whom (Viola and Lillie Mae) were under eighteen, as shown by certificates of their birth which were filed. She also stated that she and Hezekiah Parker separated thirteen or fourteen years ago, and that she had since married and was living with Henry Hill. Thereafter, by order of September 8, 1948, the commission restored the case to the hearing docket.
A second hearing was held November 11, 1948. Sylvia then testified that Carl Parker, whom she married in 1923, was the same person as Hezekiah Parker, and there was other evidence to the same effect. She said she and Hezekiah separated some eleven or twelve years before, which would be 1937 or 1936, "because he was not so good to me and my children." The only time she ever saw him afterwards was when he came to see the children for a few minutes in 1941, and said he was expecting to be called for military duty. He was called later but his military record did not show he had any children or was married. Sylvia also testified that she married Hill about two and one-half years after her separation from Hezekiah, but that she never had got a divorce from Hezekiah and had not heard anything about his getting a divorce from her, and that no divorce papers or summons of any kind had been served on her.
At the conclusion of this hearing the commission vacated the former award and held that Mollie's marriage to Hezekiah was bigamous and void and that she was not entitled to compensation. It also held that Sylvia was not entitled to compensation but that Viola and Lillie Mae, the two infant children of Sylvia and Hezekiah, were his only surviving dependents, and made an award in their favor. The correctness of that ruling depends on whether in legal contemplation Hezekiah was divorced from Sylvia at the time he married Mollie.
Appellant contends that under Code, 1942 (Michie), section 5074, the marriage license of Hezekiah and Mollie furnishes prima facie evidence that he was divorced from Sylvia. On the application for that license, required by said section, Hezekiah stated on oath (declared by the statute to be material on prosecution for perjury) that he was divorced, having been previously married once. The statute does not, however, make that statement prima facie a fact. Said section also requires that the minister celebrating the marriage shall make his own certificate of the time and place of the marriage, which shall be returned to the clerk, who is required to record it by section 5076 of the Code. Section 5074 provides that when the certificate of the minister is so recorded, the record thereof shall be prima facie evidence of the facts stated therein. This clearly applies to the minister's certificate, and does not include statements made in the application for the license.
Appellant's main contention is that there is a legal presumption that her...
To continue reading
Request your trial
-
Parker v. Am. Lumber Corp.
...56 S.E.2d 214190 Va. 181PARKER.v.AMERICAN LUMBER CORPORATION et al.Supreme Court of Appeals of Virginia.Nov. 21, 1949.[56 S.E.2d 214]Mollie D. Parker, claimant, brought a compensation ... ...