Opinion
Rehearing Denied April 15, 1933.
Hearing Granted by Supreme Court May 15, 1933.
Proceeding under the Workmen’s Compensation Act by Rae MacArthur for the death of her husband, Glenn MacArthur, opposed by the Raymond Concrete Pile Company, employer, and the Employers’ Liability Assurance Corporation, Limited, of London, England, insurer. From award of Industrial Accident Commission denying adjustment of compensation, claimant brings certiorari.
Award annulled, with directions.
COUNSEL
J. D. Bauer, of Los Angeles, for petitioner.
A. I. Townsend, of San Francisco, for respondents.
OPINION
WORKS, Presiding Justice.
Petitioner applied for an adjustment of compensation for the death of Glenn MacArthur, alleged to have resulted from injuries suffered by him and arising in the course and out of his employment under respondent Concrete Pile Company. Respondent commission having denied the application on the ground that petitioner was not the wife of MacArthur at the time of his death, she came to this court for the writ of review, asking an annulment of the award made against her. We issued the writ with some misgivings, feeling that the case was one of great hardship upon petitioner and therefore desiring to examine the entire transcript of the evidence, naturally due under return to the writ. The transcript now lies before us.
We shall recite material portions of the evidence in the order in which it was unfolded at the hearing. Mrs. MacArthur, as we shall term her throughout, testified that she and MacArthur were married in Vancouver, British Columbia, probably on October 4, 1921, although she expressed some doubt as to the exact date, that she had no marriage certificate, that they "never had a license, it was just an agreement," and that the agreement was not in writing. This appears in the record:
"Q. In what manner was your marriage with Mr. MacArthur consummated and celebrated? A. Well, we agreed to live as man and wife.
"Q. And what was said at the time you made that agreement? A. Well, he asked me if I would marry him. I told him I had been married in Canada, but I had a divorce in the United States and I couldn’t be married again. So then he wanted me to live with him as his wife and we agreed--I agreed to be his wife, and he agreed to be--to live with me as my husband and support me and keep me."
At the time, she had secured "no legal advice as to whether or not [she] could secure a marriage by ceremony and license in British Columbia," that she "had heard it from several," that "it was a rumor among [her] friends and acquaintances." The two immediately took up housekeeping together in Vancouver and remained there a year, and "then we came down here"; that is, to Wilmington, in the county of Los Angeles. Immediately after they came together, Mrs. MacArthur commenced a correspondence with MacArthur’s mother, writing her that she had married her son. Upon examination by the referee, Mrs. MacArthur testified as follows:
"Q. Mrs. MacArthur, at the time you made this alleged agreement with Mr. Glenn MacArthur, did you then honestly believe that you were entering into a legal agreement or marriage? A. Yes.
"Q. Why did you believe that? A. Well, because I was married once and had a divorce.
"Q. And before you were married by a minister, you say? A. Yes.
"Q. Why didn’t you get married by a minister this time? A. Because it was in Canada I was married before. * * *
"Q. Well, it was in Canada that you married this deceased, wasn’t it? A. But I couldn’t have no license. I couldn’t be married there again.
"Q. Why? A. I didn’t get a divorce in Canada.
"Q. Where did you get your divorce? A. They give you a divorce only on adultery.
"Q. Where did you get your divorce? A. At Tombstone, Arizona. * * *
"Q. Did you apply for any marriage license in Canada before you entered into this agreement? A. No.
"Q. Did you have him apply for any--meaning Mr. MacArthur? A. No. Just had an agreement among ourselves.
"Q. Had he ever been married before? A. No. * * *
"Q. Did he make any representations to you causing you to believe that you were entering into a legal agreement of marriage with him? A. Well, we thought we would go on and live for years, just the same, we was man and wife.
"Q. And did you believe that you were lawfully living with him as such during all the time that you lived with him? A. Yes, sir. * * *
"Q. That was your honest belief, was it? A. Yes, sir."
On cross-examination by counsel for the Concrete Pile Company, Mrs. MacArthur testified:
"Q. Now how was it that you made no attempt to have any marriage ceremony or to secure any marriage license for this relationship with Mr. Glenn MacArthur? A. Because we agreed to live as man and wife; he has always treated me as such, and I always acted--treated him as a wife.
"Q. Well, in the latter part of September or first part of October, 1921, was anything said about any marriage ceremony, that is, when you were in Vancouver? A. Yes. We--he asked me if I would marry him. I told him I was married there once before and I got my divorce in the United States, but it wouldn’t be legal in Canada.
"Q. Then you knew that you could not legally marry him, is that true? A. Not in Canada.
"Q. Then when you came to the United States you made no attempt to legalize that relationship that you entered into in Vancouver, is that true? A. We made an agreement over in Vancouver to live as man and wife and we stayed with it and lived that way. * * *
"Q. That can be answered ‘yes’ or ‘no.’ A. No.
"Q. And you knew at the time that you made this so-called agreement in Vancouver that you could not legally marry Glenn MacArthur, is that a fact? A. Yes.
"Q. And you knew that the relationship you were having with him was not legal, is that true? * * * A. No.
"Q. You say it is not true that you did not know [sic ]? A. Yes.
"Q. You knew you couldn’t marry him legally, didn’t you? A. Yes.
"Q. And you made no attempt to have any legal ceremony in the United States? A. No. * * *
"Q. Now, as I understand it, the reason that you did not apply for any marriage license in Vancouver was because you knew that you could not secure a license, is that right? A. Well, yes."
On redirect examination the witness testified:
"Q. Had you known of the common law--of a marriage known as the common law marriage? A. Yes. * * *
"Q. At the time that you and Mr. MacArthur started living together in Vancouver did he give you any ring? A. Yes, he got me a wedding ring. I told him he would have to get me a wedding ring, I didn’t have any.
"Q. And he gave you the ring? A. Yes.
"Q. And you put it on and wore it? A. Yes, I wore it all the time.
"Q. Have you still got it? A. No, I haven’t got the same one.
"Q. What became of it? A. It got too small and had to file it off.
"Q. And then--did he give you another ring then? A. Yes, he bought me the one I am wearing.
"Q. Did you believe at the time you made that agreement with Mr. MacArthur to live with him as his wife and he live with you as your husband, that you were entering into a legal marriage? A. Yes, I thought it would be all right as long as he supported me.
"Q. Have you always believed that? A. Yes.
"Q. When you came to the United States did you believe you were coming here with Mr. MacArthur, your husband? A. Yes.
"Q. Did you believe at the time you had your conversation with Mr. MacArthur about whether or not you could get a license in Canada that you could--did you then believe that you could be married by an agreement between you? Did you believe that you could be married by an agreement between you at that time? A. Yes."
On recross-examination Mrs. MacArthur testified:
"Q. On what did you base that belief? A. What is that?
"Q. On what did you base the belief that this so-called agreement was a legal marriage? A. Because he supported me, and he worked, and I was a legal wife to him and kept house and did everything a wife would do for a husband.
"Q. And did you know another couple living together in Vancouver who were not married? A. Yes.
"Q. And you knew that they could not be married? A. I don’t know about them that they couldn’t be married; I know they were living together as man and wife.
"Q. In any event, you knew that you couldn’t be married there? A. Yes. * * *
"Q. And at the time you entered into this status with Glenn MacArthur did you make any inquiry as to any matters pertaining to marriage? A. No."
The witness testified further:
"Q. Did you believe at the time that you entered into your agreement of marriage with MacArthur that your agreement to marry and followed by cohabitation was just as legal as a marriage by license and solemnized by a preacher? A. I did."
In addition to these extracts from the testimony, a further and general statement should be made. Commencing at the time of the agreement mentioned by Mrs. MacArthur the parties lived together as husband and wife until the day of MacArthur’s death, a period of about eleven years. They were never separated during that time except when in one instance he was in San Jose doing work for the Concrete Pile Company. This absence was from three to five weeks in length. Soon after they came together, she introduced him to her two brothers, to a sister, and to her parents as her husband. When they came to Wilmington, he introduced her to his mother as his wife, and they lived together in the mother’s house for a short time. An aunt of his once lived in the same house with them for a brief period. They entered into several business transactions with others in which they figured as husband and wife. His earnings, which amounted when he was regularly employed to either forty-eight or fifty-four dollars the week, were handed to her each week, with the exception of four or five dollars which he retained to pay for cigarettes and to buy gasoline for his car. When he needed additional money, he applied to her for it. She had no income except that which she derived from him. What he gave to her she kept in a bank account in her name as Mrs. Rae MacArthur, and drew checks against the account for their joint benefit. She managed entirely the business of the household, whether domestic or financial. They were known to all with whom they came in contact as partners in the institution of marriage. In short, to the eyes of the peering world, they were as much husband and wife as any pair who ever came into the relationship through ceremony at the matrimonial altar, performed according to the laws concerning marriage.
It is conceded in the briefs that at the time when MacArthur and his alleged wife came together the laws of British Columbia permitted what is generally known as a common-law marriage. It is not contended by respondents, so far as acts are concerned, that what the parties did in October, 1921, followed by their behavior from that time until MacArthur’s death, did not effect the consummation and continued maintenance of a legal relationship. It is certain that when the laws of California provided for common-law marriages, as they once did, the facts shown by the return here would have constituted as valid a connubial relationship as was ever created by license, followed by ceremony performed by judge or minister of the gospel. It is not even contended by respondents that persons divorced elsewhere than in British Columbia on other grounds than adultery could not contract a marriage in the province. In other words, the case on this particular point, under the contention of respondents, is this: Mrs. MacArthur was married to MacArthur in deed, but what she did amounted to nothing because her actions were performed in bad faith. So far as this point is concerned, then, unless evidence can be found in the return from which respondent commission could justly have determined that there was a lack of good faith behind Mrs. MacArthur’s actions, the award against her must be annulled.
We now turn to the brief of respondents. They say that Mrs. MacArthur’s "testimony shows that she was of the opinion that, on account of her divorce decree not having been granted on the grounds of adultery, she was under a legal disability to contract a marriage in the regular way, which conclusively shows that the so-called agreement between petitioner and deceased to live together as husband and wife was not in good faith, but was entered into because she could not or thought she could not secure a marriage license or be married by ceremony." We think Mrs. MacArthur’s testimony shows not at all that the agreement between her and MacArthur was not in good faith. In arriving at the conclusion which it did, respondent commission entered into the realm of assumption instead of resorting to legitimate and just inference. The fact that Mrs. MacArthur believed she could not marry MacArthur "in the regular way" affords no support whatever for an inference that she knew anything about the law concerning common-law marriage. The legal mind perceives that in basic principle, upon their foundation stones, the two kinds of marriage are the same to this extent, that, where one could not be consummated for such a reason as that given by petitioner, the other could not. But to say of a lay mind that because it knew something about the one kind of marriage it knew also about the other, is to indulge in speculation and guesswork. In truth, lay people know very little upon the subject of common-law marriage. Indeed, they know little enough about the laws affecting "marriage in the regular way." This latter remark is justified upon common knowledge. Take, for instance, the quite prevalent misapprehension of the law relating to interlocutory decrees of divorce. Great numbers of people of more than fair intelligence contract bigamous marriages under the belief that they have the right to wed again after they or their former spouses have procured the entry of interlocutory decrees. If the good faith of these people were in question--wholly aside from the question whether they have violated the positive law denouncing bigamy--who, upon the fact that they had been married before and consequently knew something about the laws relating to marriage, could justly "infer" that they knew they had no right to contract second marriages between the interlocutory and final decrees which severed their first? Respondent commission failed to look at the question before it through the eyes of Mrs. MacArthur. It did not view the prospect from where she stood. She swears time after time that she believed MacArthur was her lawful husband, and they together, for eleven years marched through life as if they both believed they were legally wedded. There is nothing in the evidence which justified respondent commission in drawing any inference which could furnish a substantial conflict with the testimony of Mrs. MacArthur. It were equally as proper to infer that she knew nothing about the basic principles affecting common-law marriage as to infer that she knew any particular thing about them. Therefore the "inference" drawn amounted to nothing, was unjustified by the evidence, and was no more than conjecture.
Immediately following the above quotation from their brief, respondents say: "And further, after applicant and deceased moved from Vancouver, B. C., into the United States no marriage license was secured or no marriage ceremony was performed." Surely, if this proposition be viewed from the standpoint of the reiterated statements of Mrs. MacArthur under oath, it answers itself. If she and MacArthur were married at Vancouver, why should they have married again? If they had gone through a marriage ceremony in the United States, they would have stood self-convicted of the wrong of having sustained a meretricious relationship during the year preceding their entry into the country. Their failure to contract a marriage by license when they came across the border, and during a decade following that event, argues for the good faith of their agreement to live together as husband and wife.
It is contended by respondents that this marriage is set for naught by the recent decision of the Supreme Court in Flanagan v. Capital National Bank, 213 Cal. 664, 3 P.2d 307, 308, but we think not. There the plaintiff made claim to a share of alleged community property, the man with whom she had been living having died. The court said: "It is admitted by plaintiff that she never was legally married to the decedent, but it is urged that she has the status of a putative or de facto wife, and is entitled as such to claim a share in the property on equitable grounds, under the rule laid down in several decisions in this state," which are then cited. The court goes on, italics ours:
"In all of these cases, the essential basis of recovery is a bona fide belief on the part of the ‘wife’ in the existence of a valid marriage. No such belief is shown by the evidence before us. In about the year 1911 plaintiff went to live with Flanagan, and to outsiders they declared that they were married. No license was procured and no solemnization was had. In the examination of plaintiff by her attorney we find the following:
" ‘Q. What did he say about the license?
" ‘A. He said it was not necessary; we did not have to have any license. He says, "We will get along as good as any couple that is married and better. " ’
"Further on she testified:
" ‘Q. You relied upon his representations that you and he were just as good as married?
" ‘A. I did, nothing was ever discussed about it. ’ "
The Supreme Court then immediately proceeds: "It would be difficult to believe that even an inexperienced foreigner, unacquainted with the laws and customs of this country, would consider that by this arrangement she had contracted a valid marriage. But plaintiff was not inexperienced. She had lived all her life in California, and had been previously legally married and divorced. Everything in the record suggests that she viewed the relationship not as a marriage, but as a satisfactory substitute for a marriage."
This proceeding presents an utterly different aspect from the case decided by the Supreme Court. That tribunal remarks that no belief is shown by the evidence that a valid marriage existed between the parties. Here there is no testimony on the question except that of Mrs. MacArthur to the effect that she believed a valid marriage existed, and we have already determined that nothing in the evidence justified the commission in indulging in any inference which would raise a conflict with her testimony. Considering the matters stated in our final quotation from the language of the Supreme Court, and considering that no such thing as a common-law marriage has been known to the polity of California for more than thirty years, if we register correctly the passage of time, the fact that Flanagan and his alleged "wife" procured no license and that there was no solemnization is most striking and important. The portion of the testimony quoted by the court in its opinion also speaks volumes which are not required to be translated.
Respondents assert that it is "questionable" whether petitioner had procured a valid divorce in Arizona, this because the statute in force in the state at the time which is now of interest required a residence of six months within its borders by plaintiff before the commencement of suit, and she testified she had then lived there three or four months. The testimony to that effect came about in this way. Counsel for the Concrete Pile Company searchingly cross-examined Mrs. MacArthur as to her movements and whereabouts from the time she met her first husband to the time when she and MacArthur were married by the agreement between them. During this questioning she testified that she procured her divorce from her first husband in Tombstone, Ariz., July 22, 1916. In the midst of the examination came that part of the record quoted above and which ends:
"Q. And you made no attempt to have any legal ceremony in the United States? A. No."
Immediately following this extract the record shows:
"Q. How long did you live in Arizona prior to the 22nd of July, 1916? A. About three months.
"Q. And was Herbert Meehan [her first husband] living in Arizona at that time? A. No.
"Q. Where was it that you had last lived with him? A. Wallace, Idaho.
"Q. Wallace, Idaho; and when was it that you last lived with him? A. 1915.
"Q. In this divorce proceeding in Tombstone, Arizona, was there any alimony granted to you? A. No, I didn’t ask for no alimony."
Further on, and we quote at length to show the method of the examination, the record shows the following:
"Q. And when was it you lived together with Herbert Meehan in Wallace, Idaho? A. In 1915.
"Q. And what was the last month you lived there? A. July.
"Q. And then did you go immediately to Arizona? A. No.
"Q. Where did you go from there? A. Went with a carnival, traveling with a carnival.
"Q. Traveling around the country? A. Yes.
"Q. And that was in the United States or in Canada? A. Yes, in the United States.
"Q. And how long did you remain with the carnival? A. From July to September.
"Q. July of 1915 to September, 1915? A. Yes.
"Q. And when you left the carnival where did you go? A. I went up to Washington, Seattle, Washington.
"Q. That was in September, 1915? A. 1915.
"Q. And how long did you remain there? A. Well, I was there during the winter.
"Q. And did you go from there to Tombstone, Arizona? A. Yes, I went from there to Douglas, Arizona.
"Q. And you had then been a resident of Arizona three months prior to the 22nd of July, 1916? A. Yes, about March or April I went there, I don’t remember just when it was.
"Q. When you went to Tombstone, you mean? A. No, I applied for a divorce in Douglas and then I had to go to Tombstone for the divorce; that is the county seat; that is, it was at that time.
"Q. How long were you in the state of Arizona before you applied for a divorce? A. Three months or four, about three months, I guess it was."
This cross-examination was roving and the references to the period of residence of the witness by her were most casual. She said first "about three months" before the divorce decree was granted she went to Arizona immediately after she had been in Seattle "during the winter"; then she said she went to Arizona "about March or April, * * * I don’t remember just when it was"; then, when asked how long she was in the state before she applied for the divorce, she replied, "Three months or four, about three months, I guess it was." It is to be observed, also, that she testified before the commission sixteen years after the period of her residence in Arizona, and apparently neither herself nor her counsel had the slightest idea that the construction now urged by respondent commission would be put upon her testimony. Apparently the point now urged was not being placed before the commission. The testimony came out in response to questions asked about Mrs. MacArthur’s movements and activities during a number of years. We think the judgment of a sister state is not to be set for naught by such a casual and uncertain showing, and especially upon a mere collateral attack. The Arizona court necessarily inquired into the question of Mrs. MacArthur’s residence and necessarily found that she had been within the state the required period before her action for divorce was commenced. We think the testimony of Mrs. MacArthur now referred to presents no conflict with the evidence afforded by the judgment. The judgment imports verity in the face of such a showing and in such a proceeding as this.
Award annulled, with directions to respondent Industrial Accident Commission to award compensation to petitioner.
I concur: CRAIG, Justice.
STEPHENS, Justice.
I concur:
Petitioner secured a divorce in Arizona. The Industrial Accident Commission, by its denial of an award to petitioner for the death of Glenn MacArthur, assumes that such decree of divorce is illegal. This was erroneous. The fact that petitioner testified indefinitely and casually that she was in Arizona three or four months before the divorce trial when the law requires a longer residence does not justify the conclusion that the divorce is invalid. She may have long been a resident of Arizona, but was actually in Arizona only a short time before the trial. She may not have clearly remembered just when she went to Arizona. A decree of a court of a sister state may not be so disregarded. It must be presumed that the Arizona court received proper proof of every essential to the decree it granted. It will be noted from the evidence that petitioner never herself doubts her legal divorcement. When later in British Columbia she desires to marry Glenn MacArthur, she is a single woman without any impediment to the right to marry. She seems to have mistaken the effect of the law, for she explains that a license cannot be obtained in the usual manner for the reason that her divorce in Arizona was obtained upon a ground not recognized by the laws of British Columbia. It is, however, the only fair inference from the evidence that she honestly thought she could enter into a common-law marriage; such a union being legal in that jurisdiction. The parties did all requisite things to constitute such a union and continued to live as husband and wife openly and decently for eleven years. A succinct and descriptive definition of a common-law marriage is given in Wittick’s Estate, 164 Iowa, 485, 145 N.W. 913. It is: "Any mutual agreement between a man and woman to be husband and wife in præ senti, followed by cohabitation, constitutes a valid common-law marriage if the parties are not legally disabled from marrying; the mutual consent of the parties to the establishment of the marriage being the essential requisite." All of these elements are present in the instant case. Of course it must readily be conceded that the common-law marriage could no more be legally consummated than the marriage by license and ceremony, but this mistaken reasoning on petitioner’s part for choosing the common-law procedure over the other in no way changes the fact that she was legally capable of doing just what she did do. Having assumed a legal status of marriage before coming to California, that status remained unchanged in California.