Westfall v. Burroughs

• Decision Date: 29 June 1937
• Docket Number: No. 58.,58.
• Citation: 280 Mich. 638,274 N.W. 358
• Court: Michigan Supreme Court
• Parties: WESTFALL v. J. P. BURROUGHS & SON et al.

280 Mich. 638

274 N.W. 358

WESTFALL

v.J. P. BURROUGHS & SON et al.

No. 58.

Supreme Court of Michigan.

June 29, 1937.

Appeal from Department of Labor and Industry.

Proceedings under the Workmen's Compenstion Act by Doris Westfall, a minor, by William Streeter, guardian, to recover for death of her alleged husband, Kenneth Westfall, opposed by J. P. Burroughs & Son, employer, and the Michigan Mutual Liability Company, insurer. From an order of the Department of Labor & Industry denying compensation, and from an order denying a petition to join as party plaintiff Ramona Elizabeth Westfall, an alleged posthumous child of Kenneth Westfall, plaintiff appeals.

Order denying compensation affirmed, order denying petition of Ramona Elizabeth Westfall to be joined as party plaintiff vacated, and cause remanded, with directions.

BUTZEL, NORTH, and WIEST, JJ., dissenting in part.Argued before the Entire Bench.

Graydon G. Withey, Earl P. Trobert, and Carl R. Hospers, all of Flint (Richard C. Fruit, of Flint, of counsel), for appellant.

L. J. Carey and Geo. J. Cooper, both of Detroit, for appellees.

BUSHNELL, Justice.

This is an appeal from an order of the Department of Labor and Industry, filed June 8, 1936, which found that plaintiff, Doris Pincombe (Westfall), was not the wife of Kenneth Westfall, deceased, and therefore was not a dependent within the meaning of Comp.Laws 1929, § 8422; and an appeal from an order denying a petition to join as party plaintiff Ramona Elizabeth Westfall, an alleged posthumous child of Kenneth Westfall and Doris Pincombe.

The department found that Kenneth Westfall was killed in the course of his employment with defendant, J. P. Burroughs & Son, on December 26, 1934. Doris Pincombe, a minor, by her guardian, filed a notice and application for adjustment of claim, asserting that she was the wife of the deceased. Testimony at the hearing disclosed that there had been no ceremonial marriage, and that plaintiff's right to compensation, if any, was based upon an alleged common-law marriage. The deputy commissioner found that plaintiff ‘was not living with deceased at the time of said accidental injury, therefore is not entitled to receive compensation.’ On appeal to the full board the award was affirmed for the reason that plaintiff was not the wife of deceased and not a dependent within the meaning of section 8422, supra. In denying the petition to join Ramona as a party plaintiff, the board held that she was not a dependent under Comp.Laws 1929, §§ 8422 and 8423, because she was born after the accident and after the institution of these proceedings.

Doris admitted that she and the deceased never actually lived together as man and wife, and gave as a reason that his limited earnings did not permit them to do so at that time.

The following language from Brown v. Long Manufacturing Co., 213 Mich. 221, 182 N.W. 124, 127, applies to the present situation: ‘Whether a common-law marriage exists nearly always presents a question of fact. We think this is true in the instant case. It has already appeared the Industrial Accident Board found against the existence of the relation. We have repeatedly held that the findings of fact made by the Industrial Accident Board acting within its powers shall, in the absence of fraud, be conclusive.’ See, also, authorities therein cited 213 Mich. 221, at page 231, 182 N.W. 124. The opinion in the Brown Case contains a number of authorities in this state on common-law marriages and includes language from Meehan v. Edward Valve & Manufacturing Co., 65 Ind.App. 342, 117 N.E. 265, 266, in which that court said: ‘To raise the presumption of marriage by such means, the evidence must be clear and convincing.’

This court has not deviated from the implications of Hutchins v. Kimmell, 31 Mich. 126, 18 Am.Rep. 164, where Mr. Justice Cooley said: ‘Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties and which would subject them and others to legal penalties for disregard of its obligations.’

We have consistently held that where parties who were competent to enter into the marriage contract presently agreed to take each other as husband and wife, and subsequently cohabited as such, the marriage was valid. It is more or less academic to discuss whether cohabitation is a necessary element of a common-law marriage in Michigan or whether it is one of the necessary proofs of the relationship, because regardless of what theoretically or technically constitutes a common-law marriage, this court has repeatedly indicated that it will not find a valid nonceremonial marriage except upon proof of subsequent cohabitation. We said in People v. Spencer, 199 Mich. 395, 165 N.W. 921, 923: ‘In this state a marriage is not proven by evidence only that the parties, inter se, agreed to take each other for husband and wife. To establish a nonceremonial marriage, there must be proof, not only of the agreement,but of the setting up of the relation of husband and wife by cohabitation. The parties must act in conformity with such an agreement and live together and cohabit as husband and wife-live together in that relation. Hutchins v. Kimmell, 31 Mich. [126] 130, 18 Am.Rep. 164;People v. McQuaid, 85 Mich. [123] 127, 48 N.W. 161;Peet v. Peet, 52 Mich. [464] 467, 18 N.W. 220;Lorimer v. Lorimer, 124 Mich. 631, 83 N.W. 609;Judson v. Judson, 147 Mich. 518, 111 N.W. 78.’ See, also, Barker v. Valentine, 125 Mich. 336, 84 N.W. 297,51 L.R.A. 787, 84 Am.St.Rep. 578;Supreme Tent of Knights of Maccabees of the World v. McAllister, 132 Mich. 69, 92 N.W. 770,102 Am.St.Rep. 382;People v. Goodrode, 132 Mich. 542, 94 N.W. 14;In re Fitzgibbons' Estate, 162 Mich. 416, 127 N.W. 313,139 Am.St.Rep. 570;Severance v. Severance, 197 Mich. 327, 163 N.W. 924.

The department applied the proper rules of law and was not satisfied after ‘a careful analysis of the testimony in this case consisting of over 150 pages' that Doris Pincombe was the wife of the deceased. Its finding of fact, in the absence of fraud, is conclusive. Brown v. Long Manufacturing Co., supra.

Although the board did not find that the mother of Ramona was the wife of the deceased nor a dependent, it is possible that Ramona may have been a dependent; for this reason, the board was in error, as a matter of law, in not permitting Ramona to be made a party plaintiff, and in failing to grant her petition to take additional testimony on the question of her dependency. The issue of Ramona's dependency is also one of fact, and an illegitimate child may or may not be a dependent within the meaning of the compensation act. We have held that illegitimate children actually cared for and supported by the deceased up to the time of his death were clearly within the class entitled to compensation. Roberts v. Whaley, 192 Mich. 133, 158 N.W. 209, L.R.A.1918A, 189. The fact that Ramona was a posthumous illegitimate child is not sufficient for denial of her day in court.

‘As to the child Margaret, born after the death of decedent, it has been repeatedly held that posthumous children are entitled to compensation due as the result of the death of a parent. By the terms of section 11,807, Comp.Laws 1915, it is provided that posthumous children are considered as living at the death of their parents. Catholic Benefit Ass'n v. Firnane, 50 Mich. 82, 14 N.W. 707;Chambers v. Shaw, 52 Mich. 18, 17 N.W. 223;Knorr v. Millard, 57 Mich. [265] 268, 23 N.W. 807;McLain v. Howald, 120 Mich. 274, 79 N.W. 182,77 Am.St.Rep. 597.

‘A child en ventre sa mere is totally dependent upon its parents for nourishment.’ King v. Peninsular Cement Co., 216 Mich. 335, 185 N.W. 858, 860.

On the record before us, it may be argued that there is no showing of dependency. The petition to join Ramona as a party plaintiff was followed by a petition for adjournment in order to ask for leave to take additional testimony in her behalf. The department held that the petition to take additional testimony did not comply with rule 10, § 2, of the Rules of Practice and Procedure of the Commission. The rule is not set up in the record and we are not informed as to its contents. It may be applicable, but in any event there is a showing in this record that the petition of Ramona was filed by an attorney who had just come into the case, and we believe that the interests of justice demand that the infant should be permitted to present such competent testimony as may be available in her behalf. The board can then determine whether or not she was a dependent within the language of the statutes cited supra (sections 8422 and 8423). See, also, King v. Peninsular Cement Co., supra; Bassier v. J. Connelly Construction Co., 227 Mich. 251, 198 N.W. 989, and Lewis v. Eklund Bros. Co., 244 Mich. 22, 221 N.W. 134.

The award of the board as to Doris Pincombe (Westfall) is affirmed, but its order denying the petition of Ramona Elizabeth Westfall to be joined as party plaintiff is vacated. The cause is remanded for the taking of testimony and the determination of the question of Ramona's dependency. Costs to Ramona Elizabeth Westfall.

FEAD, C. J., and SHARPE, POTTER, and CHANDLER, JJ., concurred with BUSHNELL, J.

BUTZEL, Justice.

There being no ceremonial or common-law marriage, the posthumous child was not legitimate. She should not be put to the expense of attempting to prove her claim when none exists under the Compensation Act (Comp.Laws 1929, § 8407 et seq., as amended).

In Schofield v. Orrell Colliery Co., Ltd., [1909] 1 K.B. 178, an award to a posthumous illegitimate child was upheld because of an express statutory provision for illegitimates under the English Workmen's Compensation Act which the court construed as making a posthumous illegitimate child a member of the...