Winder v. Consolidated Underwriters

• Decision Date: 01 December 1938
• Docket Number: No. 891.,891.
• Citation: 25 F. Supp. 451
• Parties: WINDER v. CONSOLIDATED UNDERWRITERS.
• Court: U.S. District Court — Northern District of Texas

25 F. Supp. 451

WINDER v. CONSOLIDATED UNDERWRITERS.

No. 891.

District Court, N. D. Texas, Wichita Falls Division.

December 1, 1938.

Napier & Napier, of Wichita Falls, Tex., for the motion.

T. R. Boone and E. T. Duff, both of Wichita Falls, Tex., opposed.

ATWELL, District Judge.

The Texas Compensation law, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., embodies a scheme for the writing of insurance for the benefit of employees; it provides who shall be beneficiaries. It defines "legal beneficiaries" to be such beneficiaries as are named in Section 8a, art. 8306, 1928 Texas Statutes, Vernon's Ann.Civ.St.Tex. art. 8306, § 8a; art. 8309, Pt. 4, Vernon's Ann. Civ.St.Tex. art. 8309. That section provides that the "compensation * * * shall be for the sole and exclusive benefit of surviving * * * wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, and of * * * parents * * * without regard to the question of dependency, * * *."

The facts of this case disclose that the plaintiff, Winder's, first husband died. She then married Butts. In 1924, according to her testimony, while they were residing in Colorado, Butts abandoned her, She returned to Texas, and in 1931 married Winder, believing at that time that Butts had divorced her. She also claims the benefit of the presumption of his death. Winder was accidentally burned to death while an employee of the Bishop Oil Company, in January, 1938. She brought suit as his wife under the compensation law.

While the proceeding was pending, the insurance company ascertained that Butts was still living, and upon an interview with him was unable to discover any divorce. Butts claimed that he had been drinking heavily for many years, and roving around in the Northwestern states. That he had a faint recollection of having had a court proceeding, but did not know whether he was ever granted a divorce. She said she had visited him a short time before his deposition was taken.

Mrs. Winder testified that she had received from him a paper which she called a waiver, and later, a paper which she called a divorce. She claimed that both of those papers were destroyed in her home when it was burned, but she was unable to give the contents of either paper. She testified that she believed she was divorced, and so believing, married Winder.

At the conclusion of the testimony, the defendant moved for an instructed verdict, which motion the court granted.

Being dissatisfied, I asked for re-argument.

It would seem that Mrs. Winder's belief entitles her to be classed as a putative wife, The good faith, the marriage ceremony, and the subsequent coverture brings her within that classification.

Does such a status entitle her to be the statutory beneficiary classed as "wife?"

The public policy of the state, as disclosed in its divorce laws, legislation with reference to the solemnization of marriages, and other legislation unnecessary to here mention, supports the thought that the single word "wife" means a spouse securing her status from the ability to make a valid marriage contract. Every requirement seems to point to this prerequisite. One who has a living husband, undivorced, has no legal right to contract another marriage. One who is married is not divorced by belief. Divorce may be secured by the wife for three years' abandonment, or where she and her husband have lived apart for ten years without cohabitation. Art. 4629, Texas Stat.1928, Vernon's Ann.Civ. St.Tex. art. 4629.

The defendant insurance company bound itself to pay such benefits as the compensation law provided. Its contract ran to Winder's wife—wife, as it is understood under the Texas laws—the wife who became such by reason of a valid contract with him. See Beebe v. Moormack Gulf Lines, 5 Cir., 59 F.2d 319.

Marriage may be celebrated between persons legally authorized to marry. Art. 4602, Texas Stat.1928, Vernon's Ann.Civ.St.Tex. art. 4602. One who has a husband is not legally authorized to marry. Presumption of death is destroyed by finding the person alive.

Ordinarily, this court would be greatly assisted by the declarations and decisions of the state courts which would be controlling since it is a state statute, and the state courts' construction thereof would be binding on a national court sitting in the state. Unfortunately, there appear to be no direct decisions upon the question. But the following cases contain expressions which, I think, justify the conclusion that some of the appellate courts of Texas look at this question as I have indicated. Such cases are: Fort Worth & Rio Grande Railway Company v. Robertson et al., 103 Tex. 504, 121 S.W. 202, 131 S.W. 400, Ann. Cas.1913A, 231, by the Supreme Court. In that case it was determined that the putative wife who had innocently and in good faith married one having a former wife living and undivorced, had no interest, on his death, in his cause of action for personal injuries, which, by the terms of the statute, survived in favor of his heirs and legal representatives.

In Green v. Green, 235 S.W. 980, Judge Fly, speaking for the Court of Civil Appeals, said that ...