Woods v. American Coal & Ice Co., 20970.

• Decision Date: 11 March 1930
• Docket Number: No. 20970.,20970.
• Citation: 25 S.W.2d 144
• Court: Missouri Court of Appeals
• Parties: WOODS v. AMERICAN COAL & ICE CO. et al.

25 S.W.2d 144

WOODS v. AMERICAN COAL & ICE CO. et al.

No. 20970.

St. Louis Court of Appeals. Missouri.

March 11, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Compensation proceedings by Maggie Woods and another, claimants, opposed by the American Coal & Ice Company, employer, and Ætna Life Insurance Company, insurer. From a judgment affirming an award of the Compensation Commission in favor of claimant named, employer, insurer, and the other claimant appeal.

Reversed and remanded, with directions.

C. E. Klein, of St. Louis, for appellants American Coal & Ice Co. and Ætna Life Ins. Co.

Bass & Bass and John Grossman, all of St. Louis, for appellant Alberta Woods.

N. Murray Edwards, of St. Louis, and Cope & Hadsell, of Kansas City, for respondent.

HAID, P. J.

These are appeals from the judgment of the circuit court sustaining the findings and award of the Compensation Commission in favor of Maggie Woods, awarding to her, as widow of the deceased employee, $10 per week for three hundred weeks.

The special finding of the commission, so far as the same is essential to our present consideration, was that Maggie Woods and the employee were lawfully married and were never divorced, so that the subsequent marriage to Alberta Woods (the other claimant) was void.

Our courts have held that the findings and award of the commission have the force and effect of the verdict of a jury, and in the same way become the basis for a court judgment, State ex rel. v. Missouri Compensation Commission (Mo. Sup.) 8 S.W.(2d) loc. cit. 899; Hager v. Pulitzer Publishing Co. (Mo. App.) 17 S.W.(2d) 579; Kinder v. Hannibal Car Wheel & Foundry Co. (Mo. App.) 18 S.W.(2d) loc. cit. 92, and, upon questions of fact, that the verdict of a jury is conclusive, Nichols v. Thompson (Mo. Sup.) 181 S. W. loc. cit. 386; St. Louis Police Relief Ass'n v. American Bonding Co., 197 Mo. App. 430, 196 S. W. loc. cit. 1152; Privitt v. Jewett (Mo. App.) 225 S. W. 129, provided that there is substantial and competent evidence to sustain such findings, Mississippi Valley Trust Co. v. Begley, 310 Mo. loc. cit. 300, 275 S. W. 540; Peak v. Judd (Mo. App.) 278 S. W. loc. cit. 1045.

Section 44 of our Workmen's Compensation Act (Laws 1927, p. 512) provides in effect that the findings of fact of the commission within its powers shall be conclusive and binding; and on appeal only questions of law may be reviewed and award be modified, reversed remanded for rehearing or set aside if (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) that the facts found by the commission do not support the award; or (4) that there is not sufficient competent evidence in the record to warrant the making of the award.

It is asserted here by the claimant Alberta Woods that there is not sufficient competent evidence to support the award in favor of the claimant Maggie Woods. This necessitates a statement of the evidence which was submitted to the commission.

Maggie Woods testified that she married Felix Woods (the deceased employee) on March 16, 1914, at Nashville, Tenn.; that they were married by Rev. W. N. Porter of that city; that she lived with him until the latter part of 1916, late in the fall; that they were separated at the time she left him; that later they corresponded, and she came to St. Louis, and they lived together until September, 1917; that she had to go to Columbia, Tenn., on account of the death of a relative at that time; that he failed to send for her, she was taken ill, and had to get on the best way she could; that she went back to St. Louis, went to the home, but found her husband was not at that address; that they never lived together after 1917; that they were not divorced; that she did not apply for a divorce, and that he said there was no use spending any money for a divorce; asked whether she was sure there was no divorce proceeding between her and Felix Woods, she replied she did not know about that; that he lived in St. Louis all the time since 1917 to her knowledge; that he did not send her any money after 1917, notwithstanding she had asked him for money. On cross-examination she testified that after the fall of 1917 she lived in St. Louis until 1919, at which time she went back to Nashville, Tenn., and lived there until 1924, when she went to Kansas City; that Felix went into the service of the Army at Camp Funsten, and then returned to St. Louis; that he called to see her just before he went to Camp Funsten; that as he was going to camp he called to bid her good-bye, and after he left he shipped her his clothes after he had gone to Camp Funsten; that neither he nor she ever applied for a divorce, and that no papers were ever served on her, and she did not see how he could have gotten a divorce without her knowledge; that he never called for the suitcase that he had sent her; that she did not know that he was living with another until after he died, and that she never learned that he had remarried; that she visited his parents in May, 1926, and that his mother-in-law told her about his re-marriage, casually; that she did not know anything about it before that; that she had not remarried; that her maiden name was Maggie Ray, and she began to use her maiden name in 1918 since they agreed to disagree; that he did not tell her to leave, but she guessed he wanted to leave her; that she tried to get him back in the fall when he came to see her and asked him for help; that he promised he would come back, but did not, and thereafter she began depending upon herself.

Our courts have declared in no uncertain language that, when a second marriage is shown, the conduct of the parties thereto will be presumed to be in conformity to law, and therefore the presumption is indulged that such marriage is a lawful one, and that a former marriage of one of the parties had been dissolved. Klein v. Laudman, 29 Mo. 259; Johnson v. Railways, 203 Mo. 381, 404 et seq., 101 S. W. 641; Nelson v. Jones, 245 Mo. loc. cit. 591 et seq., 151 S. W. 80.

It is also the rule in this state that the one asserting the invalidity of a second marriage legally entered into assumes the burden of proving the same, even if it becomes necessary to prove a negative. Thus in the case of Johnson v. St. Joe Terminal Ry. Co., 203 Mo. loc. cit. 412, 101 S. W. 641, 649, the court says:

"Under the weight of authority, the second marriage, when shown to have been legally entered into — that is, in due form of law — is clothed with every presumption of validity. Such is the doctrine announced by Bishop. If its validity is attacked, the burden of proving the invalidity is upon the party attacking it; and if, in assuming this burden, which the law demands, it becomes necessary to prove a negative he must do so."

To the same effect see Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. St. Rep. 513, 17 Ann. Cas. 673, and Jackson v. Phalen, 237 Mo. loc. cit. 150, 140 S. W. 879, 882.

The burden of proving the invalidity of the second marriage being upon the first wife, has she successfully borne the burden in this instance? The only testimony introduced by her is that she had not procured a divorce from him; that in 1917, three years before he married his second wife, he said he would not bother about getting a divorce or spending money for a divorce; that she had not been served with any papers, and...