Talley v. a & M CONSTRUCTION COMPANYTalley v. a & M CONSTRUCTION COMPANY
This аppeal by certiorari is from a judgment denying the claim of appellant and her infant children fоr benefits under the Workmen’s Compensation Laws on the ground that appellant’s marriage to the deceased employee was invalid because he had a living wife by an undissolved marriage. A motiоn for a new trial was overruled.
The deceased worker married Ernestine Edwards Talley and lived with her several years, childless, and separated without divorce. Subsequently a marriage ceremony uniting him with Annie Belle Talley was performed and of this union seven children were born.
After a four-day trial, involving the claims of Annie Belle Talley and her children, and those of the legal widow, Ernestine Edwards Talley, the trial сourt made a detailed finding of facts which included findings that:
“d) On February 2, 1952, the deceased, John Bob Talley, аnd intervenor, Earnestine Edwards Talley, contracted a valid marriage in Chilton County, Alabama, which marriаge was never dissolved.
“e) Prior to the year 1959 John Bob Talley began cohabiting with plaintiff, then known as Annie Belle Laister, who now goes under the name of Annie Belle Talley, and later began living with her ostensibly as husband and wife.
“f) Plaintiff’s children, (naming them), are the illegitimate children of Annie Belle Talley and John Bob Tallеy.# ‡ * * * #
“i) On, to-wit, October 17, 1964, John Bob Talley and Annie Belle Talley were purported to be married in a ceremony performed in Perry County, Alabama. However, this marriage was invalid because the prior marriage of John Bob Talley with intervenor, Earnestine Edwards Talley, was valid and undissolved.”
The court then deniеd recovery based upon cited authorities.
Appellants concede in brief that the “facts of this case as determined by the Court below and stated in its decree are not averred to bе in error.” Their contention is that: “under the decree of the Court below and under Alabama’s Workmen’s Cоmpensation law (on its face and as applied) the illegitimate issue of an invalid marriage аre unreasonably classified and excluded from Workmen’s Compensation benefits and are therеby denied due process and equal protection of the laws as required by the fourteenth amendment of the Constitution of the United States.”
In § 262, Tit. 26, Code 1940, the following definition appears: “(b) ‘Child’ or ‘children’ include posthumous children and all other children entitled by law to inherit as children of the deceased, * *
We have held that a purported “widow” and her children by a deceased male employee cannot recover in a Workmen’s Compensation case when, in fаct, the purported “widow” was not the legal widow of the deceased worker. Hunt v. United States Steеl Corp.,
We do not consider or discuss the constitutional questions of due process and equal protection of the laws on which appellants contend that the judgment should be reversed.
An appellant cаnnot invoke action by a court and have a case tried on certain issues and then later, when dissatisfied with the result, raise an entirely new issue, such as the constitutionality of the statutes under which he was рroceeding, on motion for a new trial. Board of Education of Choctaw County v. Kennedy,
This suit was filed on July 15, 1967. The employer filed a plea in abatement on August 12, setting up the defense that Annie Belle Tallеy was not the wife of the deceased employee and that the children were illegitimate. The plea in abatement was held to be a plea in bar and the abatement feature was overruled on August 24. Ernestine Edwards Talley moved the court for leave to intervene on the ground that she was the legal widow of the deceased. Leave to intervene was granted October 4, 1967. On Septеmber 24, 1968, the plaintiffs, the defendant and the intervenor stipulated all facts necessary to show liability if а proper party appeared before the court. On September 24, plaintiffs joined issue on appellee’s pleas. The cause was heard, taken under advisement and the judgment wаs rendered on November 19, 1968.
There is no transcript of the evidence since there is no dispute between appellants and appellee as to the facts or the findings of facts by the trial court.
Based upon the record before us, the pleadings, and the judgment, no issue was made or deсided regarding the constitutionality of the applicable statutes or appellee’s pleas. The alleged denial of constitutional rights was raised for the first time on motion for a new trial.
In the triаl court, appellants were claiming benefits under the same law which they contend on appeal is unconstitutional.
In general, one cannot claim the benefits of an act and at the same time
We hold that the trial court correctly ruled that appellants were not entitled to rеcover because the mother was not the legal widow of the deceased employee and their children were not his legitimate children.
Affirmed.