36 S.E.2d 880 | Ga. Ct. App. | 1946
1. (a) One who attacks a ceremony of marriage has the burden of proving by "clear, distinct, and positive proof," beyond every reasonable possibility, that a former true marriage has not been dissolved by death, divorce, or annulment.
(b) Under this record, the director was authorized to find as a fact that the former marriage had not been dissolved.
2. Under the record in this case, in no view did the court err in sustaining the award of the director.
(a) A marriage, under our statute, can be dissolved only by death of one of the parties, divorce, or annulment. Unless such marriage has been dissolved, a subsequent ceremony of marriage by either one or both of the parties is a nullity, and no separate proceeding is necessary to establish the fact that it is void.Atlantic Bitulithic Co. v. Maxwell,
(b) Where there is a ceremony of marriage before the dissolution of the true marriage, the law establishes a rebuttable presumption that the true marriage has been dissolved, and the burden is upon the one who attacks the validity of the second ceremony of marriage to produce "clear, distinct, and positive proof" that the true marriage had not been dissolved. The presumption of the validity of the marriage ceremony in the latter instance must be negatived by disproving every reasonable possibility to the effect that the true marriage had not been dissolved. This is a question of fact. State Highway Board v.Lewis,
(c) We discuss next whether the evidence is sufficient to support the award. The director was authorized to find as a matter of fact that it was admitted that the deceased, Henry Smith, had been accidently killed in the course of his employment. There were two claimants, Irene Smith, whom the director designated as wife number 1, and Lucile Smith Lester, designated as wife number 2. It was undisputed that the deceased married Lucile on November 27, 1928, and that at the time of this marriage she had four children by a former husband, who had died. They lived together until the latter part of 1934, at which time the deceased took several hundred dollars of her money and her automobile and deserted her. She filed a suit for alimony and divorce in Muscogee County superior court. They went back together. The suit was dismissed. About the latter part of 1939 or the first part of 1940, the deceased again deserted or abandoned her. The director was authorized to further find that, from the time of the marriage of the deceased and Lucile, they resided in Muscogee County, Georgia; the deceased having been employed by International Mineral and Chemical Corporation of Muscogee County, Georgia, for seven years before his death. The evidence further discloses that, after the abandonment of Lucile by the deceased about the year 1940 (without fault on her part), he continued to visit her, have intercourse with her, and contribute to her support, although the deceased on May 3, 1942, had entered into a ceremony of marriage with Irene Smith in Russell County, Alabama. After this bigamous marriage to Irene, she and the deceased lived in Muscogee County, Georgia, until his death. On October 20, 1942, Lucile entered into a bigamous marriage with James Lester, and took him into her house in Muscogee County, where she and the deceased (Henry Smith) had previously resided. In the early part of 1943 while the deceased was on a visit to the home of Lucile, he informed Lester that she was the wife of the deceased, *468 and that, the deceased, had never divorced her, whereupon Lester left her. Thereafter the deceased would visit and take money to her, have sexual relations with her as his wife, and in this manner the deceased cohabited with her as his wife until the time of the accidental death; and, so far as the record reveals, she never thereafter lived in a state of adultery with Lester or any other man before the accidental death of the deceased. So far as the record shows, Henry Smith, Lucile Lester Smith, and Irene Smith all resided in Muscogee County, Georgia, throughout the period covered by the record; and no divorce proceeding was instituted in Muscogee County to dissolve the marriage between Henry Smith, the deceased, and Lucile Lester Smith. There is no intimation that the deceased ever resided in any other county or in any other State from the date of his marriage to Lucile in 1928 until his death. It is true that, under the record, the deceased entered into a bigamous marriage contract with Irene Smith in Russell County, Alabama; but the record also reveals that he immediately took up his abode with Irene in her house in Muscogee County, Georgia. Under such state of facts the director was authorized to find as a fact and conclude as a matter of law that, up to the time of the death of the deceased, Lucile was the lawful wife of the deceased, and that she had not voluntarily deserted or abandoned him at the time of the accident.
2. The plaintiff in error contends that the case should be reversed because, even though the deceased had deserted Lucile, the successful claimant, she was not entitled to the compensation for his accidental death. This contention is based on the fact that on October 20, 1943, prior to the accidental death, she had entered into a bigamous marriage with James Lester; and that as a matter of law this precluded her from compensation under the provisions of the Code, § 114-414(a), which names among persons conclusively presumed to be dependents: "A wife upon a husband whom she had not voluntarily deserted or abandoned at time of the accident." It is further contended by learned counsel for the plaintiff that there is an irreconcilable conflict between the decision of this court in Harden v. United States CasualityCompany,
The court did not err in affirming the award for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *470