Wakefield v. Warren-Lamb Lumber Co.

• Decision Date: 19 July 1923
• Docket Number: No. 5321.,5321.
• Parties: WAKEFIELD v. WARREN-LAMB LUMBER CO. (WAKEFIELD, Intervener).
• Court: South Dakota Supreme Court

46 S.D. 510

194 N.W. 835

WAKEFIELD

v.WARREN-LAMB LUMBER CO. (WAKEFIELD, Intervener).

No. 5321.

Supreme Court of South Dakota.

July 19, 1923.

Appeal from Circuit Court, Pennington County; Walter G. Miser, Judge.

Proceeding under the Workmen's Compensation Act by Eva Wakefield for the death of Hiram E. Wakefield, opposed by the Warren-Lamb Lumber Company, employer, in which Ida M. Wakefield intervened. From a judgment of the circuit court confirming an award to the intervener, plaintiff appeals. Affirmed.Bangs & Wood and Turner M. Rudesill, all of Rapid City, for appellant.

Schrader & Lewis, of Rapid City, and C. B. Leedy, of Arnett, Okl., for respondent.

GATES, J.

This is a proceeding, under the Workmen's Compensation Law (Rev. Code 1919, § 9436 et seq.) brought by the plaintiff, Eva Wakefield, the alleged widow of Hiram E. Wakefield, against the Warren-Lamb Lumber Company for compensation for the death of her alleged husband. Ida M. Wakefield, claiming to be the real widow of deceased, intervened. The board of arbitration found that the intervener was the widow of deceased, and gave her an award on behalf of herself and minor daughter. On review by the Industrial Commissioner, at the instance of plaintiff, the award was confirmed. Upon appeal to the circuit court, taken by plaintiff, the award was likewise confirmed. The plaintiff alone has appealed to this court.

The vital question before the board of arbitration and before the Industrial Commissioner upon review, as between the plaintiff and the intervener, was whether the marriage of the deceased to the intervener had been dissolved at the time a marriage ceremony was performed between the plaintiff and deceased. Both the board and the commissioner, upon review, found that the former marriage had not been dissolved.

[1] The vital question before the circuit court was, and now before this court is, whether there was substantial credible evidencesupporting the findings of the board of arbitration and of the Industrial Commissioner upon review. Day v. Sioux Falls Fruit Co., 43 S. D. 65, 177 N. W. 816,Vodopich v. Trojan Min. Co., 43 S. D. 540, 180 N. W. 965;Dependents of Shaw v. F. C. Harms Piano Co., 44 S. D. 346, 184 N. W. 204;Wilson v. Dak. Lt. & Power Co., 45 S. D. 175, 186 N. W. 828. Even if we should adopt the view of appellant, which we do not, that the presumption of legality of the second marriage overcomes the presumption of continuance of the first marriage, we could not say that there was not substantial credible evidence in support...