United States Fidelity & Guaranty Co. v. Henderson

• Decision Date: 05 October 1932
• Docket Number: No. 3880.,3880.
• Citation: 53 S.W.2d 811
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. HENDERSON et al.
• Court: Texas Court of Appeals

53 S.W.2d 811

UNITED STATES FIDELITY & GUARANTY CO. v. HENDERSON et al.

No. 3880.

Court of Civil Appeals of Texas. Amarillo.

October 5, 1932.

Rehearing Denied November 2, 1932.

Appeal from District Court, Gray County; E. F. Ritchey, Judge.

Action by the United States Fidelity & Guaranty Company, as insurer for the Empire Gas & Fuel Company, employer, against Glen Dale Henderson and others, to set aside an award of compensation of the Industrial Accident Board. From the judgment, plaintiff appeals.

Reversed and remanded.

Gibson & Sutton, of Amarillo, for appellant.

Snyder, Owen & Lybrand, of Oklahoma City, Okl., W. A. Keeling, of Austin, and W. M. Lewright, of Pampa, for appellees.

HALL, C. J.

This case arose under the Workmen's Compensation Law (Rev. St. 1925, art. 8306 et seq., as amended).

Earl Dale Henderson, while working for the Empire Gas & Fuel Company, was killed, and, upon application to the Industrial Accident Board, Mrs. Gladys L. Henderson, as the widow, and Glen Dale Henderson and Earline Henderson, as the minor children of Earl Dale Henderson, were awarded compensation for 360 weeks, one-half thereof, after deducting attorney's fees, was to be paid to the widow and the remaining one-half to be divided equally between the two children. The Fidelity & Guaranty Company appealed from the award of the board. The attorney who represented Mrs. Gladys L. Henderson was appointed guardian ad litem for the minors, and the case was tried to the court without a jury.

The minors alleged that prior to the year 1925 their mother, Mrs. Gladys L. Henderson, was married to one Clyde Wolf, from whom she separated in 1925; that at the time of her separation Wolf informed her that he intended to institute suit for divorce and that thereafter such suit was actually instituted in Oklahoma, and prior to the 19th day of November, 1925, she was informed that her husband, Wolf, had actually procured a divorce; that she had confidence in her informant and relied upon such information, and thereafter, in good faith, believing that she had been divorced, entered into a common-law marriage with Earl Dale Henderson, of which said marriage said minor defendants were born and were therefore entitled to compensation under the Workmen's Compensation Act. It is further alleged that, in the event the common-law marriage should prove to be only a putative marriage, nevertheless under the laws of Texas the said minors were the lawful children and the heirs at law of their father, Earl Dale Henderson, deceased.

The appellant company contended that the existence of the marital relationship between Gladys L. Wolf and Clyde Wolf was known both to her and Earl Dale Henderson at the time of the alleged agreement between the latter to enter into the common-law marriage relation, and that said relation was, in fact, no marriage at all, but constituted only a meretricious relationship between them, and that R. S. art. 2581, which provides that the issue of marriages deemed null in law shall, nevertheless, be legitimate, has no application to the facts of this case, and does not make said minors legitimate children because the relationship entered into between their mother and Earl Dale Henderson was not entered into in good faith.

The trial resulted in a judgment in favor of the minors for the sum of $6,728.40, payable in weekly installments, and denying Mrs. Gladys L. Henderson a recovery.

The court filed findings of fact and conclusions of law which are, in part, as follows: (a) That Gladys L. Wolf and Earl Dale Henderson in good faith entered into their agreement to live together as man and wife; (b) that Earl Dale Henderson was the father of the minor defendants; (c) and they were entitled to compensation for the death of their father; (d) that the burden of proving the invalidity of the purported marriage between Earl Dale Henderson and Gladys L. Wolf was on the appellant company; (e) that appellant had not discharged that burden and therefore the children were presumed to be the children of Earl Dale Henderson; (f) even though the so-called common-law marriage between Gladys Wolf and Earl Dale Henderson should be invalid, that the children were, nevertheless, legitimate in law, and entitled to recover compensation on account of the death of their father.

The first proposition urged by the appellant company is that, a lawful marriage having been shown between Gladys L. Henderson and Clyde Wolf which had not been dissolved by death or divorce, children subsequently born to Gladys L. Henderson are presumed to be the children of Clyde Wolf, and this presumption can only be overcome by the strongest kind of evidence showing the impotency of the husband or nonaccess of the husband to the wife at the time the children must have been conceived, and the burden of proof is on appellees herein as the parties seeking to overcome this presumption.

Related to this proposition is the second contention, the substance of which is that a prior valid marriage having been shown between Gladys L. and Clyde Wolf, and it further appearing that Gladys L. Wolf was the mother of the two minors and she having testified to these facts, she could not then testify to any fact tending to show that her children were not the children of Clyde Wolf, for the reason that the testimony of neither the father nor the mother is admissible to prove the illegitimacy of a child nor to establish any fact tending to show that the child is illegitimate.

The record shows that she had been lawfully married to Clyde Wolf, and there is no testimony which shows or tends to show that this marriage had been dissolved by divorce or death. She sued Wolf for divorce after the death of Henderson. In the absence of good faith, hereinafter discussed, or competent proof of nonaccess, the presumption of Wolf's paternity of the minors obtains. She was an incompetent witness on the issue of nonaccess. The law is settled that the testimony of neither the father nor the mother is admissible to prove the illegitimacy of a child born to them in wedlock nor to establish any fact tending to show that the child is illegitimate. The testimony of the mother to the effect that Henderson was the father of her children and that she had not cohabited with Clyde Wolf since she left him was inadmissible under this rule.

As stated in Foote v. State, 65 Tex. Cr. R. 368, 144 S. W. 275, 276, Ann. Cas. 1916A, 1184: "The presumption of law is that a child born in lawful wedlock is legitimate, and at common law a married woman had no right to testify to acts of intercourse with another or nonaccess of her husband on the question of bastardy or illegitimacy of her child. The reason for this, as stated in the phrase of Lord Mansfield, is based on decency, morality, and public policy, and neither husband nor wife should be allowed to bastardize a child of the wife by showing acts of adultery on the part of the wife, or the nonaccess of the husband. The testimony is rejected, not so much from the fact that it would reveal the immoral conduct of the mother, as because of the effect it would have on the unfortunate child, who is not at fault, but who would be the chief sufferer. In regard to the testimony of the mother not being admissible, it has been clearly decided by this court in Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802, in which it is held that the mother and father will not be permitted to testify to any fact which would render children born in lawful wedlock bastards." See, also, Meyer v. State (Tex. Cr. App.) 41 S. W. 632; Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Schwingle v. Keifer, 105 Tex. 609, 153 S. W. 1132; 40 Cyc. 2222.

Pinkard v. Pinkard (Tex. Civ. App.) 252 S. W. 265, Moore v. Moore (Tex. Civ. App.) 299 S. W. 653, and McCulloch v. McCulloch, 69 Tex. 682, 7 S. W. 593, 5 Am. St. Rep. 96, are three civil cases which hold that declarations of the mother or father are inadmissible upon the issue of the legitimacy of their children. If their declarations are inadmissible, then upon the same basis direct testimony from either should be excluded.

The appellees' counsel insisted that the mother's testimony was admissible for the purpose of showing the legitimacy of her children, and the trial judge evidently accepted that view. In this there was error. The validity of the mother's prior marriage with Clyde Wolf is conceded, and it is also conceded that Earl Henderson had been married prior to the time when he commenced to cohabit with Gladys L. Wolf. She testified that Henderson had been divorced from his first wife, but there is no further testimony to that effect. While a ceremonial marriage may be established by general repute, by circumstances, by the testimony of a witness, and also by hearsay, such testimony is not admissible to establish the fact of a divorce. A common-law marriage may also be established by testimony of a like kind, but the best evidence of a divorce is the decree of a court of competent jurisdiction.

The testimony of Mrs. Wolf was inadmissible to establish the fact that Henderson had been divorced from his first wife. Even if it is conceded that Mrs. Wolf's marriage with Clyde Wolf had been dissolved, nevertheless her relations with Henderson were necessarily meretricious because he, according to the record, was the husband of another woman at that time.

This record is teeming with incompetent and inadmissible testimony in response to questions that were leading and which assumed the existence of facts that had not been established. The fact that most of it was admitted without objection does not render it competent or relevant, and it gains no vitality because admitted without objection, and neither this court nor the court below could consider it in support of a judgment or to form the basis of a finding of fact in the appellate court.

Evidence which is inherently incompetent is without probative...