Texas Emp. Ins. Ass'n v. Elder

• Decision Date: 26 November 1954
• Docket Number: No. 15572,15572
• Citation: Texas Emp. Ins. Ass'n v. Elder, 274 S.W.2d 144 (Tex. Ct. App. 1954)
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION et al., Appellants, v. Ethel Mae ELDER, Appellee.
• Court: Texas Civil Court of Appeals

Page 144

274 S.W.2d 144

TEXAS EMPLOYERS' INSURANCE ASSOCIATION et al., Appellants, v.Ethel Mae ELDER, Appellee.

No. 15572.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 26, 1954.

Rehearing Denied Jan. 26, 1954.

Burford, Ryburn, Hincks & Ford, Logan Ford, and Clarence A. Guittard, Dallas, for appellant Texas Employers' Ins. Ass'n.

John Ben Shepperd, Atty. Gen., and J. Milton Richardson, Asst. Atty. Gen., for appellantIndustrial Accident Board.

West, Howard & Mitchell and James L. Mitchell, Dallas, for appellee.

RENFRO, Justice.

Texas Employers' Insurance Association has appealed from a judgment decreeing Ethel Mae Elder entitled to death benefits under the Workmen's Compensation Act, Vernon'sAnn.Civ.St. art. 8306 et seq., as the surviving common-law wife of Grover Cleveland Elder, deceased.The claim was resisted on the ground Ethel Mae was not legally married to Elder because of a prior undissolved marriage to Allen Dade.

The jury made the following findings:

(1)Ethel Mae Elder(appellee) and Elder (the deceased) entered into an agreement to become man and wife.

(1A)They cohabited together as man and wife.

(1B)They held themselves out to the public as man and wife.

(3) Prior to 1932, Ethel Mae and Allen Dade entered into an agreement to become man and wife.

(4)They lived and cohabited together as man and wife.

(5)They held themselves out to the public as man and wife.

Appellee moved for judgment based on the jury's answers, and, in the alternative, for judgment notwithstanding the jury's answers to issues 3, 4 and 5.

Texas Employers' Insurance Association, hereinafter called appellant, moved for judgment on the verdict, and, in the alternative, for judgment notwithstanding the jury's answers to issues 1, 1A and 1B.

Appellant's motion for judgment was overruled.

Judgment entered for appellee recited the court'is of the opinion and finds, in response to the jury's answers to Special IssuesNos. 1, 1A and 1B, that Grover Cleveland Elder and Ethel Mae Elder entered into a valid common-law marriage some time in the year 1934, or subsequently thereto, and that they were husband and wife at the time of Grover Cleveland Elder's death.'

Motion for new trial by appellant was overruled, hence the appeal.

Appellant, by its first point, contends the court erred in failing to render judgment in its favor on the jury's finding of a common-law marriage between appellee and Allen Dade prior to her attempted common-law marriage to Elder.

The appellee counters that the evidence establishes by clear and convincing proof that (a)appellee and Elder were husband and wife at the time of Elder's death; the evidence is insufficient to support a finding that appellee and Dade were married prior to 1932; even if the evidence is sufficient to uphold the jury's finding that a common-law marriage existed between appellee and Dade, the court is bound to presume that said marriage was dissolved in absence of evidence to the contrary.

The evidence abundantly supports the finding that appellee and Elder agreed to and did live and cohabit together as man and wife from 1934 until the time of Elder's death.Their attempted common-law marriage of course was not valid if she was previously married to Dade and that marriage was never dissolved.

There is also ample evidence in the record to uphold the jury's findings that appellee and Dade, prior to 1932, entered into an agreement to, and did, live and cohabit together as husband and wife and so held themselves out to the public.

Although appellee testified she never did more than 'sweetheart around' with Dade and spend an occasional night with him, Dade testified that he and appellee were married in 1922 and lived together as man and wife for a period of nine years.He testified in detail about the eifferent places they lived, and the approximate dates they moved from place to place.Other witnesses testified that appellee and Dade lived together and introduced themselves as man and wife.Included among the witnesses testifying to facts tending to establish a common-law marriage between appellee and Dade were appellee's brother and other erlatives.

The controlling question for our determination is whether or not it must be presumed said marriage was terminated prior to appellee's attempted common-law marriage to Elder.

Neither party asked Dade if he ever obtained a divorce from appellee.It was stipulated by appellee in open court, however, that she never obtained a divorce from Dade.

That leaves only the question whether a presumption prevails that Dade obtained an annulment or divorce.

While the law does not favor, but merely tolerates, common-law marriages, yet when the facts establish such a marriage, it is as valid and binding as a ceremonial marriage and the law applicable to parties wed under a ceremonial marriage is applicable to parties to a common-law marriage.

Appellant argues that appellee cannot avail herself of a presumption that her marriage to Dade was dissolved by divorce, because (a) of her stipulation, (b) both she and Dade testified at the trial and gave no evidence about a divorce (c) her marriage to Elder was not ceremonial, (d) by her testimony she was never married to Dade and she cannot now urge a presumption of a dissolution of a marriage she says never existed.

The mentioned stipulation was not an admission no divorce was ever granted, but merely an admission 'she never got a divorce.'It is not an admission or stipulation that Dade had not obtained a divorce.

After appellee and Dade separated in 1931, both remarried.Dade was married to his present wife, Cora, by ceremonial marriage in 1934 and has fourteen children by her.Appellee married deceased, according to the court's finding, by common-law marriage in 1934 and lived with him until his death in 1952.

When a marriage has been shown in evidence, whether regular or irregular, and whatever the proofs, the law raises a presumption of its legality, not only casting the burden of the proof upon the party objecting, but requiring him throughout and in every particular plainly to make the fact appear, against the constant pressure of the presumption, that it is illegal and void.The strength of the presumption increases with the lapse of time through which the parties are cohabiting as husband and wife.Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560.

The legal presumption is that the second marriage was valid.This presumption must prevail until rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of the prior marriage could have taken place.

The burden is on the person attacking the validity of the second marriage to prove that the first has not been dissolved.Hudspeth v. Hudspeth, Tex.Civ.App., 198 S.W.2d 768.

Appellee proved her marriage to Elder to the satisfaction of the jury.Appellant attempted to show said marriage to be of no effect by reason of her prior marriage to Dade.The burden was on appellant to prove the prior marriage to Dade and that it had not been dissolved.Adams v. Wm. Cameron & Co., Inc., Tex.Civ.App., 161 S.W. 417;Gress v. Gress, Tex.Civ.App., 209 S.W.2d 1003.

Where a marriage is assailed as being invalid on account of a prior marriage having been contracted by one of the parties to the assailed marriage, such prior marriage is presumed to have been dissolved before the second marriage was consummated.This presumption in favor of the validity of the second marriage must prevail, unless rebutted by evidence which negatives the effective operation of every possible means by which a dissolution of such prior marriage could have been effected.Such presumption is rebuttable, and its effect is to cast upon the opposing party the burden of introducting testimony which, standing alone, is sufficient to negative the presumption.Brown v. Phillips Petroleum...