Summary
In Evans, this court pronounced that" 'dependency' under the Workmen's Compensation Act [does] not encompass[] relationships not recognized by law," relying primarily on cases that refused to classify children as dependents when born to a person who was not legally married to the deceased employee.
Summary of this case from State ex rel. McDonald v. Indus. Comm'n of OhioOpinion
Nos. 34996 and 34997
Decided June 5, 1957
Workmen's compensation — Death award — Widow of bigamous marriage — Presumption of status of first marriage — Burden to prove validity of second marriage — Spouse of bigamous marriage not "member of family" of workman — Not "dependent" of workman — Section 4123.59, Revised Code.
APPEALS from the Court of Appeals for Hamilton County.
These two cases involve claims for death benefits under the Workmen's Compensation Act, and, presenting the same question of law, they were heard together. In each case the workman died as a result of injuries received in the course of and arising out of his employment.
In case No. 34996, the plaintiff filed an application for death benefits, alleging that she is the legal widow of decedent. The record discloses that, prior to her marriage to decedent, she had married another, and, relying on a letter stating that her "first" husband had died, she thought she was free to remarry. However, her "first" husband had not died, and there is no evidence that either had been divorced from the other.
In case No. 34997, plaintiff filed an application for death benefits, alleging that she is the legal widow of decedent. The record discloses that, prior to plaintiff's marriage to decedent, he had married another. Evidence was presented that the "first" wife had written to decedent stating that she had divorced him. The "first" wife testified that she had never written such a letter, and that she was never legally separated from decedent up to the time of his death. No other evidence was presented indicating a legal termination of such marriage.
In each case, the Industrial Commission denied compensation on the ground that plaintiff is not a dependent of the deceased employee, but the Court of Common Pleas found that the plaintiff is entitled to participate in the State Insurance Fund and rendered judgment in her favor.
The Court of Appeals affirmed the judgments.
The causes are in this court for review by reason of the allowance of motions to certify the records.
Mr. William Isaacs, for appellees.
Mr. William Saxbe, attorney general, Mr. John R. Barrett and Mr. Daniel B. Quillin, for appellant.
The question presented is whether the plaintiff in each case is a "member of the family of the deceased" person she had married, within the meaning of that phrase as used in Section 4123.59, Revised Code.
There is no question in either case that plaintiff entered into a bigamous marriage with the now deceased employee, and there is no evidence of any consequence that a divorce was obtained either prior to or after the second marriage.
Where there is absence of proof that there has been a divorce of the parties to a marriage, there is a presumption that the marital status of the parties continues, and the burden is on such a party claiming the validity of a second marriage to overcome such presumption. Industrial Commission v. Dell, Exrx., 104 Ohio St. 389, 135 N.E. 669, 34 A.L.R., 422. See, also, Evans v. Reynolds, 32 Ohio St. 163. This presumption has not been overcome in either of the instant cases. The plaintiff in each of these cases not having been the lawful wife of the deceased workman ( Industrial Commission v. Dell, supra), within the meaning of Section 4123.59, Revised Code, and, "dependency" under the Workmen's Compensation Act not encompassing relationships not recognized by law ( Staker, Gdn., v. Industrial Commission, 127 Ohio St. 13, 186 N.E. 616; Garner, Gdn., v. B.F. Goodrich Co., 136 Ohio St. 397, 26 N.E.2d 203; Welsh v. Industrial Commission, 136 Ohio St. 387, 26 N.E.2d 198; Miller, a Minor, v. Industrial Commission, 165 Ohio St. 584, 138 N.E.2d 672), plaintiff does not have the right to support and hence is not a "dependent" within the meaning of Section 4123.59, Revised Code.
In each case, the judgment of the Court of Appeals is reversed, and final judgment is rendered for appellant.
Judgments reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.