Rocky Mountain Fuel Co. v. Reed

• Decision Date: 19 October 1942
• Docket Number: 15149.
• Citation: 130 P.2d 1049,110 Colo. 88
• Parties: ROCKY MOUNTAIN FUEL CO. et al. v. REED et al.
• Court: Colorado Supreme Court

130 P.2d 1049

110 Colo. 88

ROCKY MOUNTAIN FUEL CO. et al. v. REED et al.

No. 15149.

Supreme Court of Colorado, En Banc.

October 19, 1942

Rehearing Denied Nov. 6, 1942.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding under the Workmen's Compensation Act by Doles M. Reed claimant, opposed by the Rocky Mountain Fuel Company employer, and the Employers' Mutual Insurance Company insurance carrier. To review a judgment which confirmed an award by the Industrial Commission in favor of the claimant, the employer and insurance carrier bring error.

Affirmed.

BAKKE and HILLIARD, JJ., dissenting.

Hawkins and Hawkins, of Denver, for plaintiffs in error.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., St. George Gordon and J. Ramsey Harris, Assts. Atty. Gen., for defendants in error.

BURKE Justice.

These parties are hereinafter referred to as the Fuel Company, the Insurance Company, Mrs. Reed, and the Commission, respectively; and the deceased as Reed.

The sole question presented is, were Reed and Mrs. Reed husband and wife at the time of Reed's death?

Reed, while employed by the Fuel Company, sustained an accidental injury for which compensation was allowed by the Commission and he returned to work. Less than eighteen months thereafter he met with another accident resulting in his instantaneous death. Mrs. Reed, claiming as his common-law wife, sought to recover the unpaid balance due under the first, and all statutory allowance due under the second accident; a total of approximately $6,000. That she is so entitled if the alleged relationship existed is admitted. The Commission and the court both held in her favor and the latter's judgment, entered accordingly, is now under review by this court at the instigation of the Fuel Company and its insurance carrier, the Insurance Company.

It is admitted that the relationship of husband and wife existed unless defeated by the undisputed fact that cohabitation began illicitly because Mrs. Reed then had a husband living. She was married to one Mason from whom she shortly separated. About four years later she took up her residence with Reed. Some four years thereafter Mason obtained a divorce in California and the Reeds continued their residence and relationship until Reed's death, approximately eight years after the date of the divorce.

The position of plaintiffs in error is that the burden of proof of marriage was on Mrs. Reed; that the illegality of their relationship at its inception is presumed to continue; that she must show the contrary, and that she has therein failed. The position of defendants in error is that Mrs. Reed has made here case under the following rules: (a) Continued cohabitation after the removal of an obstacle to marriage raises a presumption of marriage. Adger v. Ackerman, 8 Cir., 115 F. 124, 52 C.C.A. 568, 104 A.L.R. 47; (b) Mutual consent to the relationship may be established by conduct as well as by express words. University of Mich. v. McGuckin, 64 Neb. 300, 89 N.W. 778, 57 L.R.A. 917; (c) Since the law deprecates illegal and favors lawful relations, slight circumstances may be sufficient to establish the transition from the former to the latter. Adger v. Ackerman, supra. Poole v. People, 24 Colo. 510, 52 P. 1025, 65 Am.St.Rep. 245.

The foregoing authorities are cited merely as best...