Winder v. Consolidated Underwriters

Decision Date15 January 1940
Docket NumberNo. 9002.,9002.
Citation107 F.2d 973
PartiesWINDER v. CONSOLIDATED UNDERWRITERS.
CourtU.S. Court of Appeals — Fifth Circuit

E. W. Napier, of Wichita Falls, Tex., for appellant.

T. R. Boone, of Wichita Falls, Tex., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant is the widow of Boyd Winder, deceased. Her claim for compensation for his death having been denied by the Board, on the ground that she had failed to show that Winder's death occurred in the course of his employment, she brought this suit. At the conclusion of the evidence, defendant moved for a verdict on two grounds. The first of these was, that plaintiff had not shown herself to be the legal wife, and therefore, the legal beneficiary of the deceased, in that the undisputed evidence showed that in 1920, she had married King Butts, and that in 1931, when she married the deceased, Butts was living and still lives, and there was no showing that she had procured a divorce from him. The second ground was, that she had not shown that the death occurred in the course of deceased's employment. The District Judge stating that he was in doubt as to the validity of the second ground, sustained the motion on the first ground and directed a verdict for defendant. Appealing from the judgment on that verdict, appellant is here insisting that the motion to direct was wrongly sustained.

We agree with appellee; that it was plaintiff's burden to show, that she was the legal wife in life, and the legal beneficiary after his death, of Winder the deceased; and that she could not recover unless she did so. Floyd v. Fidelity Union Casualty Co. et al., Tex.Civ.App., 13 S.W. 2d 909; Fort Worth & R. G. Railway Co. v. Robertson, 103 Tex. 504, 55 Tex.Civ. App. 309, 121 S.W. 202, 207, 131 S.W. 400, Ann.Cas.1913A, 231. Cf. Price v. Travelers Insurance Company, D.C., 25 F.Supp. 894.

We agree with appellant though; that her proof that she married Winder in 1931, in good faith believing that she and Butts had been divorced, and that she was free to marry again, satisfied her burden; and that the burden was on appellee to prove that she had not been divorced from her first husband, rather than upon appellant to prove that she had been, a presumption of law arising that the existing marriage is valid.1

Appellee insists that these cases deal with the burden of proof, as it is placed in controversies arising under general law, and that they have no application to controversies arising under the Workmen's Compensation Law, Section 5, Article 8307, Vernon's Ann.Civ.St.Tex., which specifically provides "the burden of proof shall be upon the party claiming compensation." We cannot agree with this view. The statute merely imposes the burden. It does not undertake to deal with the nature or quantum of the evidence necessary to discharge it.

Appellee's second point; that Winder's death was not compensable as sustained in the course of his employment, because the proof showed that Winder's death occurred from an explosion of gasoline in Winder's car, while he was endeavoring to start it to drive away, is no better taken.

The case made is not one of an injury occurring on a public highway or on premises other than those of the employer, where the employee is taking himself to and from his work, as were the cases on which appellee relies. Texas Employers' Insurance Association v. Smith, Tex.Civ. App., 75 S.W.2d 732; Viney v. Casualty Reciprocal Exchange, Tex.Civ.App., 82 S. W.2d 1088; Traders & General Insurance Company v. Fletcher, Tex.Civ.App., 118...

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14 cases
  • Alabama Power Co. v. White
    • United States
    • Alabama Supreme Court
    • September 28, 1979
    ...A.2d 860 (1963); Peart v. T. D. Bross Line Construction Co., 45 A.D.2d 802, 357 N.Y.S.2d 53 (S.Ct.1974); and Winder v. Consolidated Underwriters, 107 F.2d 973 (5th Cir. 1940). Each of the above cases supports, in part, the proposition for which appellant cites them. We agree with these auth......
  • Mitchell v. Fidelity & Casualty Co. of New York
    • United States
    • U.S. District Court — Southern District of Texas
    • March 7, 1942
    ...to the jury, that there is evidence to sustain the finding of the jury thereon, and that the finding should stand. Winder v. Consolidated Underwriters, 5 Cir., 107 F.2d 973; Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153,......
  • Travelers Ins. Co. v. McKain, 13054.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 3, 1951
    ...generally be resolved in favor of effecting that broad coverage for which the statute was originally enacted. See Winder v. Consolidated Underwriters, 5 Cir., 107 F. 2d 973; Security Mutual Cas. Co. v. Wakefield, 5 Cir., 108 F.2d 273; Casualty Reciprocal Exch. v. Johnson, 5 Cir., 148 F.2d 2......
  • Gibson v. Hughes
    • United States
    • U.S. District Court — Southern District of New York
    • March 14, 1961
    ...cases similar to this one. See Alto v. State Industrial Accident Commission, 118 Or. 231, 246 P. 359. See, also, Winder v. Consolidated Underwriters, 5 Cir., 107 F.2d 973. 5 30 D.C.Code (1940) § 105. "If any marriage declared illegal by the afore-going sections shall be entered into in anot......
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