Parson v. Parson, 16599

• Citation: 387 S.W.2d 764
• Decision Date: 22 January 1965
• Docket Number: No. 16599,16599
• Parties: M. D. PARSON, Appellant, v. Louise PARSON et al., Appellees.
• Court: Texas Court of Appeals

Page 764

387 S.W.2d 764

M. D. PARSON, Appellant, v. Louise PARSON et al., Appellees.

No. 16599.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 22, 1965.

Rehearing Denied Feb. 12, 1965.

Peery, Wilson & Jameson, and James W. Jameson, Wichita Falls, Brown, Kronzer, Abraham, Watkins & Steely, and W. James Kronzer, Houston, for appellant.

Mock, Banner & McIntosh, and Jack Banner, Wichita Falls, Attorneys for appellee, Louise Parson.

Nelson & Sherrod, and Stan Carter, Wichita Falls, for appellee, Texas Employers' Ins. Assn.

MASSEY, Chief Justice.

Texas Employers' Insurance Association became a 'stakeholder' in the trial court. It admitted its liability for the payment of 'death benefits' under the Texas Workmen's Compensation Act, in a 'lump sum', and deposited the amount thereof. There is some doubt as to whether it was made a party on the appeal. No point of error raises any contention against it. In order to settle the question it moved to have an yappeal as against it dismissed. The motion is granted. We deny the 'additional' attorney's fees for which Texas Employers' Insurance Association prays because of the circumstances which caused it to consider that there was a necessity to seek this action. This Court's authority in the case is appellate only.

Disposition of this case is simplified if the trial court be held to have been correct that Louise Parson was legally the wife of the deceased Robert Parson. Under the record made below there remained no issue of fact to be tried, hence, the case was proper to be resolved on motion for summary judgment.

Circumstances of the relationship between Louise Parson and said deceased were such that presumptions to be indulged were that from and after the date they participated in a ceremony purporting to celebrate their marriage to one another, on August 2, 1952, they were husband and wife, each constituting the lawful spouse of the other.

This presumption is controlling in the instant litigation, if not positively established, as applied to the deceased. There was no impediment to his lawful contracture of a marriage on August 2, 1952, and he did engage upon such in obtaining a license to marry Louise and participating in the ceremony whereby an authorized official declared that he and Louise were thenceforth husband and wife.

Were only a portion of the record considered there would have been a question whether the same might be said as applied to Louise, and the initial presumption of the lawfulness of her second marriage to the deceased might have been successfully rebutted so as to create an issue of fact, were we thereto confined. Fowler v. Texas Exploration Co., 290 S.W.2d 818 (Galveston Civ.App., 1927, error refused). It was positively established that prior to the date of the marriage ceremony of Louise and the deceased she had participated in a marriage ceremony whereby she was purportedly wed to one John Wesley Sessums. Date thereof was January 10, 1946. Of this union, or purported union, two children were born. Louise and John Wesley Sessums parted on January 3, 1949, never thereafter cohabiting nor holding themselves out as husband and wife.

When we consider all of the record and evidence we find it conclusively shown that as applied to the marriage ceremony on January 10, 1946, there was no lawful inhibitory impediment to the entry into a valid marriage by Louise. Fowler v. Texas Exploration Co., supra. Not so as applied to John Wesley Sessums. The evidence conclusively shows that he had entered upon what is sometimes termed a 'war marriage' during World War II. In England he had on June 25, 1945, under authority of a license obtained for the purpose, participated in a ceremony whereby an authorized official effectively united Sessums and his 'war bride' by matrimonial bonds.

It is readily observed, therefore, that John Wesley Sessums, a man already married, was not qualified to lawfully become the husband of Louise when he 'went through' the ceremony purporting to make him such on January 10, 1946. It has already been mentioned that Louise was, at that time, qualified to marry. In Texas, however, under the common law long ago adopted as controlling in such matters, it is essential to the legality of a marriage that neither the woman who marries a husband nor the man who marries a wife have a living spouse to whom he or she is then lawfully married. If such a marriage be attempted it is void ab initio and as to both parties. See 93 A.L.R. 345 (supplemented at 144 A.L.R. 747), Anno.: 'Validity of marriage celebrated while spouse by former marriage of one of the parties was living and undivorced * * *.'; 4 A.L.R.2d 542, Anno.: 'Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as affecting right to annulment'; 55 C.J.S. Marriage Sec. 17, Subsisting Marriage, p. 831. As stated in 38 Tex.Jur.2d 60, 'Marriage', Sec. 24, 'Subsequent Marriages': 'The Penal Code forbids the marriage of one who has a husband or wife living. (Penal Code, Arts. 490 and 490a.) A marriage by such a person is made a felony, and the marriage itself is void.' (Authorities cited.) See also 35 Am.Jur. 271, 'Marriage', Sec. 148, '(Prior Marriage) Generally'.

And when such a purported marriage takes place it is absolutely void, not merely voidable. Prior marriage does not constitute that character of impediment which renders possible the subsequent ratification of the marriage contract, effecting thereby the validity ab initio of a marriage of the parties,--as, for example, a person who was insane at the time the contract was...