Sledd v. State Comp. Comm'r

• Decision Date: 09 February 1932
• Docket Number: (No. 7135)
• Citation: 111 W.Va. 509
• Court: West Virginia Supreme Court
• Parties: Elizabeth L. Sledd v. State Compensation Commissioner

111 W.Va. 509

Elizabeth L. Sledd

v.State Compensation Commissioner

(No. 7135)

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1932.

Decided February 9, 1932.

Marriage

The widow of an employee who was killed in the course of and resulting from his employment may not be denied compensation under the Workmen's Compensation Act of West Virginia on the ground that she had another husband living, undivorced, at the time of her marriage with such deceased employee, in the absence of judicial determination that her marriage with the deceased employee was bigamous.

Proceeding under the Workmen's Compensation Act by Elizabeth L. Sledd, claimant, against the State Compensation Commissioner and others for compensation for the death of James E. Sledd, deceased employee. The Compensation Commissioner denied the claim, and the claimant appeals.

Bversed; remanded.

II. E. Billon, Jr., and T. A. Myles, for appellant.

Howard B. Lee, Attorney General, and B. Dennis Steed Assistant Attroney General, for respondents.

Maxwell, Judge:

James E. Sledd was killed October 17, 1930, by an accident in the course of and resulting from his employment with the White Oak Fuel Company, a subscriber to the Workmen's Compensation Fund. Elizabeth L. Sledd, claiming to be his widow, made claim to compensation which was denied by the commissioner August 1, 1931, from which denial she appeals.

In 1921 she married one John Slade and lived with him until, when she discovered he had an undivorced wife living, and separated from him. On September 2, 1924, she married the deceased employee without having obtained annulment of her marriage with Slade. She and Sledd lived together as man and wife until his accidental death.

The commissioner denied compensation on the ground that she had a husband (Slade) living at the time of her mar- riage to Sledd, and therefore was not the widow of the deceased employee.

The question presented is whether a woman who is married to a workman and living with him as his wife at the time of his accidental death should be denied compensation because she had a husband living at the time of her marriage to the deceased? (For purposes of the immediate discussion we are assuming that Slade is living. The record does not disclose whether he is or not. The claimant says she has been trying to ascertain his whereabouts but has failed.)

At common law a disability to contract a marriage, such as having a lawful living husand or wife, rendered a subsequent marriage absolutely void ab initio, and it was good for no legal purpose. The wife of such a marriage was not entitled to dower and the children were illegitimate. Cartwright v. McGown, 121 I11. 388, 12 N. E. 787; 38 Corpus Juris, 1292. In many of the states, a marriage when one of the parties has a husband or wife living and undivorced, is void, and being a nullity, no decree is necessary to avoid it, Illustrative is Reeves v. Reeves, 54 111. 332; Drummond v. Irish, 52 Iowa 41, 2 N. W. 622; Blossom v. Barrett, 37 N. Y. 434, 97 Am. sec. 747; Glass v. Glass, 114 Mass. 563; Martin v. Martin, 22 Ala. 86. The Virginia statute found in the Code of 1860, chapter 109, section 1, declared all such marriages "absolutely void, without any decree of divorce, or other legal process," but that marriages prohibited on account of consanguinity or affinity should be void from date of decree avoiding them. Our statute, incorporated in the Code of 1868, radically changed the common law and the law of Virginia, and made such bigamous marriages "void from the time they are so declared by a decree of divorce or nullity." This is carried into the Code of 1931, 48-2-1, except that the proceeding is there denominated "decree of nullity" and not "decree of divorce or nullity" as formerly. Under our statute, therefore, such marriages are not void ab initio, but become void only by judicial determination.

The general rule is that a voidable marriage is regarded as practically valid until its nullity is declared by a court of compentent jurisdiction within the lifetime of the parties.

18 Ruling Case Law, p. 690. Of course an individual may be convicted of the crime of bigamy though there has been no decree of annulment. What effect such conviction would have upon the claim of the guilty party for compensation need not now be considered.

Where there exists the distinction of the common law and the canonical law between void and voidable marriages, the former may be attacked collaterally even after the death of one or both of the parties, but the latter may be attacked only within the lifetime of the parties.

"A void marriage is a mere nullity, and its validity may be immpeached in any court, whether the question arise directly or collaterally, and whether the parties be living or dead." II Schouler on Marriage, Divorce, etc. (6th ed.), p. 1353. For same proposition see also I Bishop on Marriages, etc., p. 106,. As to a voidable marriage Schouler says, at page 1356 of volume cited, "Unless the suit for nullity reaches its conclusion during the lifetime of both parties, all proceedings fall to the ground, and both survivor and offspring stand as well as though the union had been lawful from its inception.'' As to the distinction between void and voidable marriages a learned author says: "A void marriage confers no legal rights, and, when it is determined that the marriage is void, it is as if no marriage had ever been performed. * * * A voidable marriage differs from a void marriage in that it may be afterwards ratified by the parties and become valid and usually is treated as a valid...