206 P. 197 | Nev. | 1922
Lead Opinion
We will refer to the parties as they were designated in the trial court.
Paragraph 1 of the complaint alleges the creation of the defendant, Nevada Industrial Commission, under and by virtue of the provisions of an act of the legislature approved March 15, 1913 (Stats. 1913, p. 137), as amended (Stats. 1915, p. 279; Stats. 1917, p. 436; Stats. 1919, p. 305). The complaint also alleges that one Alfred Dahlquist, while employed by the Tonopah Belmont Development Company, which had elected to avail itself of the terms of the act mentioned, on the 2d day of February, 1920, received injuries resulting in his death; that on or about March 1, 1918, plaintiff became the common-law wife of said Alfred Dahlquist; that thereafter, on February 3, 1920, a ceremonial marriage was entered into between them; that she had
An answer was filed denying the allegation of a common-law marriage, admitting that the plaintiff had filed with the defendant a claim for compensation as the widow of the deceased, but alleging that said claim was based upon a ceremonial marriage between plaintiff and Alfred Dahlquist entered into on February 3, 1920, the day following that upon which he had been inj ured. The answer admits the rej ection of the claim, but alleges that it was rejected because it appeared from the claim itself that the marriage between plaintiff and the deceased had been entered into after the injuries had been sustained.
The action was tried to the court, which filed a written opinion, and ordered findings to be prepared favorable to the plaintiff. Judgment was rendered accordingly; hence this appeal.
Counsel for defendant present two contentions: First, that there was no common-law marriage; and, secondly, that the ceremonial marriage having been entered into after the injuries had been sustained by Dahlquist, plaintiff does not come within the provisions of the act. In determining the latter contention we must, of course, look to the intention of the legislature as it is expressed in the act. Counsel for plaintiff contends that'she comes within the provisions of the act, and relies to sustain his position chiefly upon the case of Crockett v. International Ry. Co., 176 App. Div. 45, 162 N. Y. Supp. 357. We do not think this case is controlling. It turned upon the point that the wife, who had married the deceased after the injury, did not fall within the class designated as dependents, but that she was entitled to recover because of the legal and moral responsibility of the husband to support the wife. The New York act. does not read as does ours, and hence the authority is no guide to us. Our statute provides
“Sec. 25. Every employee in the employ of an employer within the provisions of this act, who shall be injured by accident arising out of and in the course of employment, or his dependents, as hereinafter defined, shall be entitled to receive the following compensation :
“If the injury causes death, the compensation shall be known as a death benefit, and shall be payable in the amount and to and for the benefit of the persons following :
“1. Burial expenses, not to exceed one hundred and twenty-five ($125) dollars, in addition to the compensation payable under this act.
“2. To the widow, if there is no child, thirty per centum of the average wage of the deceased. This compensation shall be paid until her death or remarriage with two years’ compensation in one sum upon remarriage.
“3. To the widower, if there is no child, thirty per centum of the average wage of the deceased, if wholly dependent for support upon the deceased employee at the time of her death. This compensation shall be paid until his death or remarriage.”
Section 26 reads:
“The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee:
“1. A wife upon a husband whom she has not voluntarily abandoned at the time of the injury. * * *
“Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the accident or injury to the employee, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions.” Stats. 1917, c. 233.
Hence we see that, under section 25 of our statute, to be entitled to compensation, in case of the death of the injured person, the one claiming such compensation
In view of this unequivocal language, why should we grope around for some theory upon which to base an interpretation squarely contrary to that expressed? There is no room for interpretation of the language used. Rules of interpretation are resorted to only where doubt exists as to the idea sought to be expressed. We are confronted with no such situation. It is clear that plaintiff cannot recover because of her ceremonial marriage. This view finds support in the case of Kuetbach v. Industrial Commission, 166 Wis. 378, 165 N. W. 302, L. R. A. 1918F, 476. Indeed, we think plaintiff’s counsel must have taken this view upon the trial, since no evidence was offered by him as to the ceremonial marriage.
This brings us to a consideration of the case as made by the plaintiff relative to the alleged common-law marriage. It is said by defendant that no common-law marriage has been established by the evidence, the main point to sustain this contention being couched in the following statement in the brief:
“The parties cohabited, but not on any agreement then and there to become husband and wife.”
This, of course, was a question of fact to be determined by the lower court. There is very little conflict
It appears that the plaintiff and the deceased were born in Finland, and that the former had not been in this country a great while when she met the deceased. In giving her testimony, as appears from the transcript, she was somewhat at a disadvantage in expressing herself. She testified:
That after she had known the deceased about two months “ * * * he says to me it is too lonesome him living all alone. We find out that we got deep love for each other. He says, ‘It is too lonesome living alone.’ 1 say, too, I feel too lonesome without him; he say nothing on earth can separate us. * * * I say to him I got old sickly mother in old country where I always have to send little I make-living to her. He says to me that can’t come between us, that matter, because he is husky man and can make living for our both and little amount we can send it always in your sickly mother in the Finland. * * * After that he says to me, ‘Let’s go live together in this house just like the man and wife, because that only way we get enough money to buy our own home.’ And I am satisfied with that. We are living together. He says, ‘Now we are man and wife.’ ”
There is in the record evidence of several witnesses, nearly all of whom were foreign born, and evidently natives of Finland, who testified that the deceased had introduced the plaintiff to them as his wife. Several of the witnesses testified that he frequently alluded to her as “Mama,” and that they understood that the parties were man and wife. With the witnesses alluded to, it is evident that “Mama” was of especial significance. The evidence shows also that the deceased and plaintiff went to live at the A-rgyle House, in Goldfield, some months after the alleged marriage, and that he registered as “Alfred Dahlquist and wife,” and that in the circle in which the parties moved they were accepted as man and wife.
Without further considering this question, we may say that the trial court heard the oral testimony, observed the demeanor of the witnesses upon the stand, and, in view of the fact that many of them were foreigners, was in a far better position than we are to determine the existence of a common-law marriage. On the whole case, we do not feel justified in disturbing the finding of the court.
The learned attorney-general criticizes certain language of the trial court as expressed in his written opinion:
“I consider these facts incidents of the situation that arises under our law permitting common-law marriage, which se.ems very convenient. Under it people may be married or unmarried as is most convenient. They never need any divorce, no matter what happens. Such a marriage would never support a prosecution for bigamy. No doubt many common-law marriages in this*117 and other states simply fade away when the man takes a fancy to another woman or the woman to another man.”
We agree most heartily with counsel that such is not the law. We can approve of no such standard. A marriage, whether of common-law or ceremonial character, is the consequence of a contractual relationship. In the one case it is the result of present assent, between parties capable of contracting marriage, followed by subsequent cohabitation as husband and wife, and the holding out to the world of each other as such. Such a marriage has all the binding force of a ceremonial marriage ; and one who enters into such a marriage without being divorced may, during the lifetime of such a common-law spouse, be guilty of bigamy, as was held by this court in State v. Zichfeld, 2 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800.
We think the rights, obligations and liabilities of those entering into a common-law marriage have been clearly established by this court in the following cases: Parker v. De Bernardi, 40 Nev. 361, 164 Pac. 645; Clark v. Clark, 44 Nev. 44, 189 Pac. 676, 194 Pac. 96. However, in this case the formal findings of the court sustain the judgment, and the evidence warrants the findings.
It is said that the plaintiff should not prevail because she relied upon the ceremonial marriage before the commission, but upon the common-law marriage in the court, in view of the rule to the effect that a question not raised in the lower court will not be considered on appeal generally. 3 C. J. 694, et seq. We do not think this rule is applicable to the situation confronting us. There was, and could have been no appeal from the ruling of the commission. The action of the district court was an original proceeding in a court of record, the complaint alleging a common-law marriage, and the case being tried upon that theory. The defendant was not misled in the trial court, and, so far as we see, no substantial injustice has been done in the matter. The
The judgment is affirmed.
Rehearing
On Petition for Rehearing
By the Court,
A very earnest petition for a rehearing has been filed. It appears that the only conclusion reached in our former opinion complained of is the last one stated in the opinion. In the petition for a rehearing counsel quote in full our views expressed on that point, and then observe:
“We declare that this question is a vital question, not in so much as its decision affects the respondent or appellant in the instant case, but because, if the quoted language is carried to its logical analysis, it is a mandate to any and all claimants to- ignore the act and its requirements in establishing, or attempting to establish, jurisdictional conditions precedent before the commission prior to prosecuting an action de novo upon a rejected claim, and because, if the quoted language is not carried to its logical analysis, it leaves the commission without judicial guidance in administering the act establishing and creating it.”
Counsel then ask this question:
“But does the court intend by its opinion and decision that the trial de novo does not contemplate that the jurisdictional conditions precedent provided for in the act need be fulfilled by the claimant to an award before the commission?”
We may say that we are entirely satisfied with the disposition made of the question urged upon our consideration in the petition, and would not deem it necessary to file this response to the petition but for the fact that we wish to make it clear that we do not intend to convey any idea save that definitely expressed in the opinion. We are of the opinion that the point suggested by the query quoted was not before us, and we do not understand that we decided it in our former opinion.
“Is there anything in the act which provides that when a claim is presented and a hearing had (before the commission) and its determination entered, as to the method of procedure thereafter?”
To which counsel replied:
“No more than the blanket statement, and the Brown case, that the commission may sue and be sued.”
Counsel seem to base their entire argument upon the theory that the case in the district court, wherein the judgment was rendered which was appealed to this court, was tried by that court de novo. Since the term “de novo” means anew, it may be that, literally speaking, the trial in that court was de novo; but in legal parlance the term “de novo” signifies that there had already been a trial before some tribunal, and that the trial de novo was not before a court upon an original hearing, but upon appeal, whereas this case was originally instituted in the district court. We are sure that learned counsel are well aware of the terms of section 1, art. 6, of our constitution, and of the holding in Ormsby County v. Kearney, 37 Nev. 314, 142 Pac. 803, and followed in V. L. & S. Co. v. District Court, 42 Nev. 1, 171 Pac. 166, wherein it was held that the legislature had no authority to create a tribunal with judicial powers, other than as provided in the section of the constitution mentioned, from which an appeal might be taken to thé district court in this state.
We have not been cited to any provision of the Workmen’s Compensation Act (Stats. 1913, c. 111, as amended by Stats. 1915, c. 190, Stats. 1917, c. 233, and Stats. 1919, c. 176) authorizing an appeal from the commission to the court, nor do we understand that it is contended that there can be such an appeal. If there can be no such appeal, we are at a loss to know how there can be a trial de novo before that court of a matter considered by the commission. There is absolutely no connection between the proceeding before the commission and that before this court, nor, as appears from the answer of counsel to the query propounded during
The petition is denied.