*1 Tes.) UNDERWRITERS KELLY CONSOLIDATED S.W.) 8306-8309), trial court has to cor- fact. rect if it is on mistake of based UNDER v. CONSOLIDATED et al. KELLY 1619.) (No. WRITERS. Appeal Court, Orange from District Coun- Appeals Beaumont. Civil ty; Stark, Judge. V. H. 3, 1927. Dec. Proceeding Compen- under the Workmen’s 21, Rehearing Dec. Denied Kelly sation Act for the death husband, Joseph Kelly, opposed T. J. <&wkey;3Illegal Marriage of man and relations — Ferguson, employer, and Under- Consolidated mar- into lawful not converted held woman riage by writers, appeal insurer. On an to the dis- recogniz- sojourn temporary in state marriage. trict court the award of Industrial Ac- ing common-law living ap- aside, cident set and claimant Board Illegal man and woman relations recognizing peals. Remanded, in state wife husband and instructions. as with marriage into converted common-law held Beaumont, Reagan, C. O’Eiel D. & sojourn by temporary state marriage lawful recognizing Bennett, Orange, appellant. for marriages, common-law Lord, appellee. acquiring C. A. resi- intention of visits were without states. of such dence WALKER, compensation case, J. This is a <&wkey;22 Marriage with woman —Married subscriber, Ferguson wife became wherein J. T. was the as his husband man other than insurer, Kelly hus- of lawful on death em- common-law wife and Joe his band, compensation eligible com- ployee. January, the 19th of Joe On (Workmen’s Com- death mon-law husband’s pensation Kelly, while in the due of his em- course Civ. St. [Vernon’s Ann. Act ployment Ferguson, with J. T. received 8306-8309]). arts. compensable injury, died. which he having living husband woman Where ap- The Industrial Accident awarded Board recogniz- in state his wife man as another with deceased, pellant, surviving wife of as marriage, common- became she common-law Compen- compensation eligible under our Workmen’s receive man and of such law wife Compensation compensation (Vernon’s Workmen’s under Ann. arts. sation Act Civ. St. (Vernon’s arts. 8306- Ann. St. Civ. Act 8306-8309). appellee prose- From- that award 8309). death, upon subsequent death of for his appeal to the court of Or- cuted its district though even lawful ange county, where, upon novo, a trial de death, con- husband’s know of such lawful favor, in its court instructed a verdict given presumed to common- sent is to have been setting aside the award of the Industrial first moment when Board,'and denying Accident com- able to into contract. undisputed theory on the pensation, Rehearing. the wife showed that she was not evidence Kelly <&wkey;18 compensation of Joe at the time of death. proceeding 3. Names —In ap- pleadings show as matter law that Under evidence held to deceased and evidence having same name claimant’s as pellee, recog- state of Louisiana does (Workmen’s husband was such husband Com- valid known in Texas as nize as common-law what pensation [Vernon’s Act Ann. Civ. St. .marriages; state in that 8306-8309]). arts. marriages, ceremonial solemnized proceeding Compensa- In under Workmen’s regulating prescribed, statutes manner marriage, (Vernon’s Ann. tion Act 8306-8309), St. arts. valid; together and wjfe for common-law death of husbánd, as husband and wife of man previous cohabitation in which issue, according husband was became evidence held dead not married to the woman to show matter of law that deceased who regulations prescribed by ceremonies and had same name as was her husband. former claimant’s illegal and meretricious in that statute are together state, live as hus- a contract vife, complying &wkey;»l4 identity per- band Names —Controverted by identity son cannot be established of name provisions regulating statutes mar- alone. void.’, riages, is identity General rule is that of name Lane, is evi- In and Louisa identity person, dence of absence of negro here, Louisiana, citizens of controverting pre- evidence sufficient to raise Amelia, La., began living together living at sumption effect, to that but if is con- wife, cohabiting husband and under similarity troverted of name alone is not suffi- would be husband an wife, identity. cient to establish such that in Texas would have on conditions &wkey;>4l7(9)Judgment Master and servant marriage. With- common-law constituted compensation proceeding, workmen’s if based marriage, contracting ceremonial ever fact, may (Work- mistake of be corrected agreement, together under but they Compensation men’s Act [Vernon’s Ann. Civ. La*, home at (cid:127) 8306-8309]). arts. During these to 1920. proceeding Compensa- under Workmen’s (Vernon’s in each of the states tion Act worked Ann. Civ. St. arts. Digests Key-Numbered topic and Indexes other cases
®=>For see and KEY-NUMBER.in *2 (Tes. WESTERN REPORTER SOUTH Alabama, Florida, Mississippi, for husband, George Brown, Tesas. the and fact Louisa’s appears rejoined In all of these states it common- she Joe Kelly recognized marriages Beaumont, in law on the the conditions under legal principles they in Joe which this state. While as their resumed relations would appellant working Florida, was him visited have in made them husband wife. and months, Thanksgiving, 1925; months about three about two Brown about died appellant but Mississip- Alabama, Kelly in two months in neither fact, nor Joe knew of that pi, appellant knowledge month in While and about one and had no of it wife, visiting Joe, in- his received her until Brown as after Joe’s The death of death. Wife, change new friends as his troduced her to his and their no in relations. they They cohabited as husband and lived and made no new contract in relation there- wife, to, October, 1925, they their absence from Louisiana but from re- during only temporary, city and all these united their lives in the La., they Amelia, Tex., change home at maintained their there was no in their relations recognizing January, their from their absence until Joe’s death in temporary nature, stated, home the facts the did court err in securing employment, purpose and instructing against appellant a verdict on’the purely theory na- Joe were Louisa’s visits that she was not the common-law any visits, Kelly intention ture of whatever of and wife of Joe We think this at the time of"his death? acquiring a residence must be answered those states. the affirmative. It is our conclusion made, undisputed facts, law, law as [1] Under the statement a matter of con as appellant Kelly the relations between of Louisiana declared stituted wife of Joe meretricious, illegal appellant January 19, day and Joe and he received sojourn temporary in the states injury. negroes their and fatal gether to had lived These marriages recognizing years. During common-law almost had been to each other husband and were illegal they convert their a lawful relations into time marriage. wife, recognized and as Kelly performed [2] In had some trouble Joe their friends. all the duties Joe sister, appellant’s while he was with at Louisa those a wife. and Thereupon Amelia, Thanksgiving, 1925, he deserted La. Until illegal, were the relations Louisiana, pellant did in and the bar left but that w'as because and terposed by law, time At the until 1925. because of a want not hear from him and they appellant, They Kelly part. were of intent on their deserted wanted to wife, and, express them as neither of husband and wife. was their husband had persons in married, they single they previously tent to be and wife. As husband had no eyes knowledge A few that the their law. bar to Texas com Kelly removed, they appellant, marriage mon-law deserted had been months after Joe she heard that he was dead, March, did and could not into a con new marriage with a ceremonial contracted tract on basis. Yet on these facts we sanctity marriage under of a mar think of the because executed, riage duly duly relation, policy impels license public issued sound thereby becoming Recogniz given his lawful wife. law the have been at to infer consent “to marriage, validity this she were able first moment when at her Campbell home in with to enter into the contract.” Kelly La., 1925,when, learning Campbell, they until that Joe L. 182. As L. R. H. desired Beaumont, Tex., marriage, was her deserted their intended relations to be joined wife, continuing Beau this that of husband and October, during recognized mont in and lived with him intent must be all the time continuously they such, from that his date as wife un cohabited as therefore the they agreement upon til his They January, death 19th on the renewed their which relations resumed their husband and with the inten relations made them wife from living together tion of as their husband and the moment the bar to lawful wife until their* death. Joe w'as Buskirk, introduced her removed. As said Townsend v. Van Rep. 287, wife, his Beaumont friends as his Misc. and she 68 N. Y. S. acknowledged openly they him as her husband. was immaterial whether “of knew * * * They wife, being lived and cohabited as husband and that removal fact removed, their received friends in their their home consent to the such, may recognized friends relation them matrimonial inferred from Our husband and relations between their acts conduct.” conclusion on wife. that, except living husband, opinion .upon proposition dissenting Joe and were such is based Looney the the that Louisa had a fact of Mr. Associate Justice Fidelity Guaranty would have declared their status to & United States Co. v. marriage. (Tex. App.) be that of a common-law is There Dowdle against reviewed no evidence But wherein the author- conclusion. he cited and (cid:127)wrote ities Tes.) with a sound the ported means harmonious on this ers. holding from spent said: S. W. between Case is the married have had its appellee, take ity I don’t I year. meretricious not though in the but have heard her Mississippi. Judge Louisa rendered The facts on sation 205 U. S. and sound the appellee lee’s cited and was at George brief osition before ton court Supreme (appellant) “I have been Reversed Davis v. It seems couldn’t From what Eola point facts. I argument George majority opinion- feel bound has been gave brief Mississippi jurisdiction cited when Appellee insists that we September, in the Davis * * * it. Looney’s in the home in “The courts Brown. authorities the.court week at Kelly, know how Chase, a niece of Brown was not raised La. Brown we must be the man in entering and the in favor of talk about him. She married refused to not even seen while say controlling him. She told me that she married I in ably Jeffords, by us, together Brown she married to learning its recognize I don’t know what only I didn’t relation. George that case amount as died and this issue are public policy. 27 S. Ct. us, us that called to When she left privilege of living Beaumont, Tex., whether Amelia. highest home, of the United I argument, at home. She reviewed dissent rendered. reversed and knowed of against long by is in Supreme have relied in Rehearing. about case, Mississippi. week involving etc. interestingly follow of the able Browm, know Ibut KELLY Case, yet part effect to dissent, she was in Travers v. in that case the careful At woman authority, it was the able George * * * said, is our (Tex. per upon Thanksgiving, I appellant, Dowdle country majority subject.” left there. on more one him came examining Court attention, we 51 from this note States the husband As the Dowdle the exact are in error v. CONSOLIDATED judgment here its facts. Judge by Brown. time Aunt Lou just right L. Ed. somewhat an illicit personally. the relations judgment. follows: year * * * I judge argument of follows up here, the Galves- in in favor go there, never knew in Mississippi. Mississippi, judge many Reinhardt, much as a Case refused App.) had come reviewed harmony testified: research point in compen- there in opinion, Though Looney he is dead. believe * * major- him in its appel- many I prop- state filed. were since That have not been sup- who oth- just was in October came to We 261 when he died. I no do to to is * I at Amelia. I S.W.) Brown was dead since I have been over in up. I did hear that Kelly. I after Joe wards; And him. was sick for as, Amelia, La.’ I was in New Orleans he I Morgan City. well, He was been dead at the time I heard it. is colored. uncle; yes, was dead.” I have Kelly. Brown at Moss couldn’t tell for Mr. self. giving, 1925. He was a relation of mine. He and then it is about try. He was. said her Jackson and thing City, La., I in 20th ed Moss ried Brown that.” as Amelia. * * * to that Joe was after that before cause I days er heard that Joe was dead that left. ** don’t know saw Brown when left “My knowed have not seen “I married man Jesse George marry George I died; because I never have died got Louisa Kelly. working say, I don’t know my Louisa also UNDERWRITERS you before I was there day He died Boeuf, La., * George about George name I killed. That is the I only I I have known her a yes, a man Ferguson.- post about wasn’t at no Brown The last time I heard about him When Joe went county, rejoined and lm was father get knew Joe was killed. spoke of October. that him and ‘We time. Brown. Kelly, appellant, I Point, I living together. The sir. was there when Kelly; * * * I I you I sir. known is it how officeis for Mr. off the train at Raceland my uncle, alive, two was dead. don’t left there. Thanksgiving, is dead. He died couldn’t Brown was am went As to what the closest town ever * Point, ‘George was Jesse were Brown of was married railway testified: were brothers. some kind of * * * I just George Mississippi shortly back Brown. I anything far or * * 35 and said she had the name of know what Kelly. I no, don’t I my I knew a man since I out on farm in Amelia. ten three She knew Ferguson. Miss. Brown; heard that when there married wedding I say sir. I saw him Mississippi I he is Brown is now home, any is from to Amelia since I heard about that station is named gone miles George after he separated know was wrote * * * home, off in 1919 he As He I heard about him I days colored, whether same Joe I old. the name he more I when 1925. Louisa * * * afterwards learned worked under now; I pretty to how testified: in saw Brown— don’t which is back home. dead. That was After hemorrhage. name of I died; don’t know how at Amelia, me a letter dat- and left remember, my- before he died. live at about I know I have worked George George Brown, died; since 1925. Morgan City. I that anything maiden Joe. two or He I Moss I I from Brown know gotten and so was long they Louisa, good I left on the I don’t long also but I come heard It Louisiana. contracted the coun- left Junction, living the same I think.’ was Thanks- yes, or from Morgan Brown. left George George George * * * Brown Brown he Louisa Louisa Boeuf, buried it was *3 Point, while. after- heard name Kelly name know three home there mar- Tex- then. after well; Yes; any- was, him. aft like had sir. be- my He me at I I (Tex. WESTERN REPORTER SOUTH
plaintiff was the same as the
invoked where the
had the same name.
proved a conservator’s bond and that of the person
ant have the same
sumed.
negative
Cal. 279. Where the
denied where one of the
not
presumption
comes
taking
where
trial
ple,
of the rule
the same name
process.
records;
surety
thorities to the
ter,
(Ky.) 68,
Tufts,
332;
court refused to
Thompson,”
two
plication;
sumption
the
ord was
where the
I don’t
31 P.
saw him was in 1925 at Amelia.
my
judicial' hearing
I continued to live there with
this rule
limited both in its
by
fect. But this is
from
back to Amelia.
name
in
volved.
that tíme.
county.
George
thorities
Ev. vol.
sufficient to
that.
Amelia.
“An
In
We have
Morgan City
two
the absence
license on the 12th
regularity
the
43 W.
indulged.
indulged Again,
March, 13, 1920,
judge, identity
Waller v.
Ellsworth
The
inoperative.”
examination
is evidence
Yes;
the name of the
Scam.
his affidavit as an incident to the trial
7
were the
Brown. I
know where was raised.”
purposes
Miss.
these
6,
of
@=>For Key-Numbered Digests topic other cases see same and Indexes KEY-NUMBER