Texas Emp. Ins. Ass'n v. Elder

• Decision Date: 13 July 1955
• Docket Number: No. A-5125,A-5125
• Citation: Texas Emp. Ins. Ass'n v. Elder, 155 Tex. 27, 282 S.W.2d 371 (Tex. 1955)
• Parties: TEXAS EMPLOYERS' INSURANCE ASS'N, Petitioner, v. Ethel Mae ELDER, Respondent.
• Court: Texas Supreme Court

Page 371

282 S.W.2d 371

155 Tex. 27

TEXAS EMPLOYERS' INSURANCE ASS'N, Petitioner, v.Ethel Mae ELDER, Respondent.

No. A-5125.

Supreme Court of Texas.

July 13, 1955.

Rehearing Denied Oct. 19, 1955.

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

John Ben Shepperd, Atty. Gen., and J. Milton Richardson and Robert O. Fagg, Asst. Attys.Gen., for Industrial Accident Board.

West, Howard & Mitchell, Dallas, for respondentEthel Mae Elder.

HICKMAN, Chief Justice.

In the trial courtrespondent, Ethel Mae Elder, suing as the surviving common-law wife of a deceased employee, Grover Cleveland Elder, recovered judgment against petitioner for death benefits under the Workmen's Compensation Law, Vernon'sAnn.Civ.St. article 8306 et seq.That judgment was affirmed by the Court of Civil Appeals.274 S.W.2d 144.Petitioner defended the action on the ground that the alleged common-law marriage between Ethel Mae and Elder was invalid because of her prior undissolved marriage to Allen Dade.In answer to special issues the jury found that Ethel Mae and Elder entered into an agreement to become man and wife; that they cohabited together as man and wife, and held themselves out to the public as man and wife.The jury made like findings with regard to the relations between Ethel Mae and Allen Dade, the date of the agreement between them to become man and wife being fixed as 'prior to 1932'.Petitioner alleged that the common-law marriage between Ethel Mae and Allen Dade had not been dissolved, but produced no evidence in support of the allegation.

Respondent brings forward to this court her contention that there is no evidence of probative force that she and Allen Dade ever entered into an agreement to become man and wife.The Court of Civil Appeals overruled that contention and based its judgment of affirmance on the ground of the presumed dissolution of their marriage prior to the subsequent marriage of each to another person.We find it unnecessary to decide that question, for, in our view, the case should be affirmed on the ground upon wich the well-considered opinion of the Court of Civil Appeals is based.

By the jury findings this situation is presented: Ethel Mae and Allen Dade became husband and wife by a common-law marriage prior to 1932; thereafter Ethel Mae became the common-law wife of Grover Cleveland Elder, the deceased employee.Obviously, if the first marriage had never been dissolved, the second marriage was invalid.There is no evidence that the first marriage had been dissolved or that it had not been dissolved.The Court of Civil Appeals held that in the absence of evidence it will be presumed that the subsequent marriage was legal, and that the prior marriage had been dissolved.We approve that holding.

The presumption in favor of the validity of a marriage which, as in this case, has been duly shown to have been contracted is one of the strongest, if, indeed, not the strongest, known to law.'The presumption is, in itself, evidence, and may even outweigh positive evidence to the contrary.The strength of the presumption increases with the lapse of time, acknowledgments by the parties to the marriage, and the birth of children; and the fact that the legitimacy of a child may be involved is a factor in sustaining the validity of the marriage.'55 C.J.S., Marriage, § 43, pages 892-893.It is well that the presumption should be so regarded, for it is grounded upon a sound public policy which favors morality, innocence, marriage, and legitimacy rather than immorality, guilt, concubinage, and bastardy.Nixon v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S.W. 560;Holman v. Holman, Tex.Com.App., 288 S.W. 413;Carter v. Green, Tex.Civ.App., 64 S.W.2d 1069, error refused;Hudspeth v. Hudspeth, Tex.Civ.App., 198 S.W.2d 768, error refused, n. r. e.;35 Amer.Jur., Marriage, § 191 et seq.Many cases from various jurisdictions supporting the rule that marriage, once being shown, is presumed to be valid are collated in annotations in 34 A.L.R. 464, 77 A.L.R. 729, and14 A.L.R.2d 7.

It would be difficult to conceive of a case in which there would be a more impelling reason for the operation of that presumption than in the case before us.Ethel Mae and Elder had been living together as husband and wife for eighteen years before his death.The same year that they entered into that relationship, 1934, Dade married a woman named Cora by a ceremonial marriage.They had lived together as husband and wife from that time until the trial in 1954, during which time fourteen children had been born to them.If the marriage of Ethel Mae and Elder was not valid, neither was that of Dade and Cora.Courts will gladly resort to any allowable presumption to avoid the holding that Ethel Mae and Elder were never married and that the mother of Dade's children is not his wife.

Petitioner advances several reasons why the presumption of legality should not be indulged in this case.We shall consider those reasons in the order in which they are presented in the application for writ of error.

In the course of the trial of the case it was stipulated by the attorneys for both parties that Ethel Mae never got a divorce from Allen Dade.It is claimed that such stipulation should be construed to mean that no divorce had ever been granted.We do not so construe it.It was not a stipulation that the prior marriage had not been dissolved in a suit by Dade.The question is decided squarely against petitioner's contention in Holman v. Holman, supra.In that case a woman who had been twice married testified that she had never instituted a suit for divorce against her first husband and that she was never served with citation in any divorce suit.But it was held, contrary to the holdings of the Court of Civil Appeals in that case, that, though taken as truth, the testimony failed to negative a dissolution of a prior marriage by means of a court action instituted by the former husband.See alsoHudspeth v. Hudspeth, supra.There is no need to cite outside authorities to the same effect, but they are available.SeeReed v. Reed, 202 Ga. 508, 43 S.E.2d 539;In re Pilcher's Estate, 114 Utah 72, 197 P.2d 143;Parker v. American Lumber Corp., 190 Va. 181, 56 S.E.2d 214, 14 A.L.R.2d 1.Many other cases from various States are cited in an annotation in 14 A.L.R.2d 50.

It is argued that a presumption of the dissolution of the prior marriage cannot be indulged because both parties to that marriage testified at the trial, and there was no testimony about a divorce or annulment.As a basis for this claim it is contended that the burden rested upon Ethel Mae to prove the legality of her marriage to Elder.We do not understand petitioner to question the well-established rule that, when a marriage has been duly established its legality will be presumed, and the burden of proving the contrary is upon the one attacking its legality.But the claim seems to be that the general rule does not apply in a case brought under the Workmen's Compensation Law, because of the provision in Article 8307, Section 5, that '* * * the burden (of) proof shall be on the party claiming compensation.'This question was decided contrary to petitioner's contention by the Circuit Court of Appeals, Fifth Circuit, in Winder v. Consolidated Underwriters, 107 F.2d 973, 974.The opinion in that case reasons that 'The statute merely imposes the burden.It does not undertake to deal with the nature or quantum of the evidence necessary to discharge it.'We agree with that holding.Respondent discharged the burden cast upon her by making proof of her common-law marriage to Elder.The presumption itself supplied the evidence that her prior marriage to Dade had been dissolved.With that rule as a basis we can perceive no valid reason for holding that the presumption of the legality of the second marriage was rebutted by the fact that both parties to the prior marriage testified in the case.Dade was not a party to the suit, but was a witness for petitioner.No duty rested upon Ethel Mae to prove that Dade had obtained a divorce from her; the duty rested upon petitioner to prove the negative fact that the prior marriage had not been dissolved.Its failure to do so gives rise to the strong presumption upon which we base our opinion.We overrule this contention.

It is next argued that there is no presumption that parties are competent to enter into a common-law marriage.In support of the claim that the presumption is limited to a subsequent ceremonial marriage and does not obtain in the case of a subsequent common-law marriage, petitioner cites Lopez v. Missouri, K & T Ry. Co., Tex.Civ.App., 222 S.W. 695, error dismissed;Calhoun v. Dotson, Tex.Civ.App., 32 S.W.2d 656, no writ history; and Dowdle v. U. S. Fidelity & Guaranty Co., Tex.Civ.App., 242 S.W. 771, reversed on other grounds, Tex.Com.App., 255 S.W. 388.In so far as those cases may afford support for petitioner's claim, they cannot be regarded as authority, for if they hold what is claimed, that holding is contrary to the generally accepted rule in other jurisdictions, and also contrary to the holding of this court, through the Commission of Appeals in Holman v. Holman, supra.In that case the presumption was employed to legalize a second common-law marriage.We can perceive of no valid reason for a distinction between a subsequent common-law marriage and a subsequent ceremonial marriage in so far as the efficacy of the presumption is concerned.But if such a distinction should be recognized, it would not avail petitioner in this case, for Dade was married to Cora by a ceremonial marriage in 1934.The presumption would be that that marriage was legal, and, if it was, then obviously the marriage of Ethel Mae and Elder was legal.

It is next argued that because Ethel Mae testified that she was never married to Dade, she cannot claim a presumption of the dissolution of that...