Opinion
No. 28254.
May 15, 1951. Rehearing Denied June 13, 1951.
APPEAL FROM THE CIRCUIT COURT, AUDRAIN COUNTY, FRANK HOLLINGSWORTH, J.
"Not to be reported in State Reports."
Barnes Barnes, Latney Barnes, and John S. Divilbiss, all of Mexico, for appellant.
Joseph M. Bone, Jr., Mexico, for respondents Howard Ray Mann and Kenneth Elvin Mann.
This is an appeal from a judgment of the circuit court affirming the finding and award of the Industrial Commission of Missouri. Daisy Mann, the appellant, claimed compensation as the widow of Raymond E. Mann, who died as the result of an accident in the course of his employment. Two dependent minor children, Howard and Kenneth, were also claimants. The referee awarded Daisy Mann three-fifths of the compensation and each minor child one-fifth. Upon review by the Commission additional testimony was taken and it was found that Daisy Mann had failed to prove that she "was the lawful wife" of the deceased, and the full compensation was awarded to the minor dependent children. From the decree affirming this award, Daisy Mann appealed to the Supreme Court of Missouri, which found that it was without jurisdiction of the appeal and transferred it to this court.
Raymond Mann was electrocuted when one of the cables of a clamshell shovel that he was operating came in contact with an electric power line. It is admitted that full compensation for his death is due to his dependents. The question for decision by the Commission was which of the claiming parties were entitled to the award. If Daisy Mann was lawfully married to Raymond Mann at the time of his death she is entitled to a portion of the award, and if she is not the widow of Mann then all of the award goes to his dependent children. These children were born of a marriage between Raymond Mann and a wife named Helen, who obtained a divorce from him in 1945.
Daisy Mann testified that she lived at Mexico, Missouri, until early in the year of 1946 and was at that time the wife of Claude Smith. In June of 1946, Smith was awarded a divorce from her. She stated that prior to this divorce, in February, 1946, she had left Mexico with Raymond Mann in his automobile and they both had gone to Ordway, Colorado. She said that they both lived at the home of Mann's father and occupied separate rooms until July 18, 1946. She testified that on July 18, 1946, they drove to Hugo, Colorado, which is the county seat of Lincoln County, and Raymond there obtained a marriage license while she waited for him in the car. Claimant said that they then drove to Limon, Colorado, in the same county, and were married by a justice of the peace before two witnesses whose names were unknown to her. She claimed to have had a marriage certificate which she had lost.
Around the first of the year, 1947, Daisy and Raymond Mann returned to Mexico, Missouri, where they continued to live as husband and wife up to the date of Mann's death. During this time many relatives of Mann visited them and one of his children lived with them for a while.
The deceased had listed himself as a married man on a withholding exemption certificate in August of 1947, and on an information blank that he was required to file with his employer, he directed that Daisy Mann be notified in case of accident. On another company record he stated that he had a wife and two children living. On credit applications made after their return to Mexico, he stated that he was married and on one of these he wrote the name of Daisy Mann as his wife.
The claimant children offered in evidence the deposition of the Recorder of Lincoln County, Colorado, who was in charge of the issuance of marriage licenses and the record of marriages performed after the licenses were issued. He stated that there was no record of the issuance or the return of any license issued to Raymond Mann and Daisy Belle Patton, which was claimant's maiden name, or Daisy Belle Smith, her married name. He stated that he had examined the records for the entire year of 1946.
The deposition of George Mariner, justice of the peace, was also offered by the Mann children. Mariner testified that he was the only justice of the peace in Limon, Colorado, and had been since December, 1945. During his tenure of office he had performed only two marriage ceremonies and neither of these was the marriage of Daisy and Raymond Mann.
Upon the evidence the Commission stated: "We further find that Daisy B. Mann failed to prove that she was the lawful wife of the employee, Raymond Mann, now deceased, and that Howard Ray Mann and Kenneth Elvin Mann, minor sons, are the sole dependents of the deceased employee and are awarded the full death benefit to be divided equally between them and payable to them as herein provided."
It is contended by the appellant that the finding is not supported by competent and substantial evidence.
Under the Administrative Review Act, Section 536.140, subd. 2(3), Missouri Revised Statutes, 1949, we must determine whether or not the conclusion reached is supported "by competent and substantial evidence upon the whole record", but as stated in Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, loc. cit. 649: "This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence." Scott v. Wheelock Bros., 357 Mo. 480, 209 S.W.2d 149; Moore v. International Shoe Co., Mo.App., 213 S.W.2d 215; Douglas v. Calvary Cemetery Ass'n, Mo.App., 222 S.W.2d 572.
There is no doubt that Daisy Mann was accepted as the wife of Raymond by his friends and relatives, after their return to Mexico. There is no doubt that she acted as his wife, even to caring for one of his children by his marriage to Helen. Mann held her out as his wife by naming her as such in various information forms that he was required to fill out in connection with his employment and in seeking credit. In addition to the evidence mentioned there is of course Daisy Mann's testimony that she and Raymond had gone to the county seat of Lincoln County, Colorado, and had obtained a marriage license and that they then drove to the town of Limon, in the same county, and were married by a justice of the peace. All of this raises a strong presumption of a legal marriage, for the law presumes morality. When a man and woman live together as these two did, the law presumes a legal union and not that the woman is a kept mistress. Suddeth v. Hawkins, Mo.App., 202 S.W.2d 572; Hartman v. Valier Spies Milling Co., 356 Mo. 424, 202 S.W.2d 1; Smith v. Smith, Mo.Sup., 237 S.W.2d 84.
If the claimant's evidence had remained unrebutted, the Commission would have undoubtedly found that she was the widow of Raymond Mann, but Daisy Mann was specific as to the date and place of her alleged ceremonial marriage and as to the date and place that the license was issued. The other claimants have shown that no license was issued and no marriage, as claimed, was performed. Indeed, under the laws of Colorado in force at the time of the alleged marriage, it could not have been performed in the casual manner described by the claimant. Chapter 107, Colorado Statutes Annotated, 1935, sets out the method of applying for a license. Section 5 of the Chapter requires that the applicant shall have a premarital examination before the party authorized to issue the license may do so. Under the law each applicant for a license must "file with him a certificate from a physician licensed to practice medicine which certificate shall state that the applicant has been given such examination, including a standard serological test for syphilis, made not more than thirty days (30) prior to the date of issuance of such license, and that in the opinion of such physician, this person either is not infected with syphilis, and other venereal diseases, or is not in a stage of that disease which may become communicable." Another subsection of Section 5 provides that a physician's certificate must be accompanied by a statement from the person in charge of the laboratory making the test. A certificate of the physician must be attached to the license and no marriage can be legally performed unless the certificate for each party is attached to the license. We take judicial notice of the laws of Colorado under Sections 490.090 and 490.100, Missouri Revised Statutes, 1949.
It is claimed by the appellant that the testimony of the justice of the peace is not clear enough to offset the presumption of marriage because of the last answer he gave in his deposition. He was asked: "On July 18th, 1946, were you the sole Justice of Peace at Limon. Colorado?" and he replied: "I was. Since December 5th, 1945, I have been the only one qualified as Justice of Peace, at Limon, Colorado, Precinct No. 3." The justice of the peace districts are called precincts in Colorado. Colo.R.S. 1935, Ch. 96, Sec. 1. Since the witness clearly stated that he was the only justice of the peace in Limon, Colorado, the remainder of his answer must have meant that Limon is in precinct No. 3. We know of no other construction that could be put upon the statement and it therefore does not appear to be ambiguous.
The appellant relies upon the case of Hartman v. Valier Spies Milling Co., supra, but the rebuttal evidence in that case was not as strong as that presented here. There the recording clerk said that no permanent record of licenses issued was kept and he was not asked if the records showed a license returned as provided by the Illinois law. Although the rebuttal evidence was not as clear as that before us, the Supreme Court termed the case "somewhat close".
It appears that the evidence of the claimant children was sufficiently clear and cogent to overcome the presumption of marriage raised by Daisy Mann's evidence, and the Commission could have reasonably made its findings and reached the result that it did upon the consideration of all of the evidence before it.
For that reason, it is the recommendation of the Commissioner that the judgment of the circuit court affirming the award of the Commission be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and McCULLEN and BENNICK, JJ., concur.