ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(104 Ohio St. 389, 135 N. E. 669.)

L.R.A.1916D, 944, 111 N. E. 299, Ann. Cas. 1917D, 1162, 13 N. C. C. A. 713, and without attempting to review the opinion in that case it may be said that there was, perhaps, more justification for the judgment of the court in that case at that time than there would be at the present time. At the time that case was decided, in 1915, no provision was made for an appeal from the final action of the commission denying the right of a claimant to continue to participate in the fund. After that decision, in March, 1917, § 1465-90, General Code, was amended to give the right of appeal from such orders. There can therefore be no reason for drawing any distinction or making any classification of findings or orders concerning the power of the commission to modify or change. Even without Even without the express provisions of the statute, the commission might very well be held to have inherent right to revoke an order where it was clear that the order had been obtained by imposition or upon a showing of facts which were later found not to exist. The commission should be held to have inherent power to prevent the misappropriation or the misapplication of the insurance fund to claimants who are afterwards found not to be entitled thereto. The state insurance fund is in the nature of a trust fund, and it is the duty of the commission to impartially distribute the distribute the same among persons entitled thereto, and not permit the fund to be depleted or become the object of fraud or imposition, and, it being clearly their moral and legal duty to correct any mistake or fraud or imposition which will result in a misapplication or misappropriation of any part of the fund, the law should not be so construed, even in case of ambiguity; neither should the legislature be held to have intended to enact any provisions which would in any manner hamper or interfere with the members of the commission in their efforts to properly protect the fund. A familiar way of testing any con

troverted proposition is by supposing extreme cases. Let us therefore suppose that an award had been obtained by the perjured testimony of a large number of witnesses, and that each and all said witnesses later confessed to the perjury, thereby clearly establishing that the award was an unjust one; or suppose that the person who would really be dependent is dead, and that someone has impersonated him, and, after award, the impersonation is exposed; or suppose that the employee has been killed by an accident which occurred after the employee had reached his home at the end of his day of service, and that the accident had no relation whatever to the employment, but by means of perjured testimony the commission should be convinced that the injury occurred directly in the course of the employment, and the true facts should later be discovered after an award made. In any of these supposed cases, or in hundreds of other cases which might easily occur, should the action of the commission in making an award be held to be a finality and beyond the power of the commission to make correction?

The power of the commission to set aside an award is found in § 1465-86, and the language there employed is general. If its order can be set aside in case of fraud, it can also be set aside where its order was wrong, even though no fraud was practised, and conversely, if it cannot be set aside in cases where it has been discovered that an honest mistake was made, then it cannot be set aside in case of fraud.

Further justification of the conclusions we have reached is found in the fact that throughout the Industrial Commission Act its purpose is declared to be for the protection of dependents of killed employees, and not for persons who are merely dependents upon dependents. It further appears throughout the act that, while money already paid cannot be recovered back, nevertheless the fund is protected for the real dependents until payment is made.

This is indicated by the provisions of § 1465-88, which protects the award from claims of creditors and from attachment or execution, and requires that payment shall only be made to employees or their dependents. This indication finds further support in the last paragraph of § 1465-83, where it is provided that in all cases of death from causes other than the injury for which award had theretofore been made on account of temporary, or permanent partial or total disability, in which there remains an unpaid balance, representing payments accrued and due decedent at the time of his death, the commission may in its discretion award such unpaid balance to "dependents of the decedent."

The views herein expressed are in perfect analogy to the provisions of the General Code relating to new trial of civil actions. It is provided in § 11,578 that upon certain grounds for new trial the application must be filed within three days from the rendition of the verdict. But neither this limitation nor any limitation is placed upon "newly discovered evidence material for the party applying, which he could not with reasonable diligence discover and produce at the trial." If it was considered wise to make this exception in adversary proceedings, there is much greater reason for applying the same principle where the proceedings are not adversary, but merely administrative, and where the same opportunity for discovering mistake or imposition does not exist. The first question must therefore be determined in the affirmative, to the effect that the commission had the power, under § 1465-86, to revoke the award theretofore made to the wife of the second marriage.

-award to spurious widow.

Let us next inquire concerning the respective and relative rights of these two unfortunate women. It has been argued with much force, supported by much authority, that a presumption should be indulged of

A

the validity of the second marriage, and that, even though conceding there was a former valid marriage, the burden will be imposed upon the wife of the first marriage, and especially so when, as in the case at bar, it is clearly shown that the first wife is living, to overcome the presumption that a divorce was obtained before contracting the second marriage. Many authorities have been cited in support of this principle, and it may be conceded that by far the larger number of authorities so hold. Many authorities have been cited which, if they should be followed, would be decisive of this case in favor of the rights of the second wife, unless it should be found that there is enough in this record to overcome such presumption. brief examination of the record shows that there was a domicil of the first marriage in the state of New York, which was in fact the last domicil, and that the first wife always lived at Niagara Falls after the domicil there was established. No divorce could have been obtained in New York state without personal service upon the first wife, and no divorce could have been obtained in Ohio without a copy of the published notice being mailed to her, and, since these are the two most likely states where proceedings must have occurred, if at all, it is apparent that no valid proceedings were ever had in either of those states, because it is apparent from this record that the first wife had no knowledge of any divorce proceedings. It is inconceivable that she would have continued to receive support up to 1912 or 1913 if a divorce had been obtained prior to that time, or that she would have made any effort, or that her daughters would have made any effort in her behalf, to obtain further support, if there had been a legal separation at the suit of the husband. This record shows that such effort did continue up to within about three months of the death of Hiram Plumsteel. The record also shows that Plumsteel told the second wife that his first wife was

(104 Ohio St. 389, 135 N. E. 669.)

dead, and that he told the same thing to her brother and to the attorney Mr. Mecartney. Nowhere does it appear that he ever claimed to have been divorced. If he had ever in fact been divorced it would have been just as easy to have assigned that reason to show his right to remarry, because that would have been conclusive, while it is apparent that a false statement of the first wife's death was a very dangerous ground upon which to rest his claim for security. Even if this court should follow the rule so frequently declared in other jurisdictions, we must still reach the conclusion from this record that there is enough to overcome any such presumption, and to place upon the second wife the obligation of proving that by valid divorce proceedings Hiram Plumsteel was free to contract a valid second marriage.

We are not, however, content to decide so important a proposition upon precedent alone. This court is not bound by the decisions of the courts of other states, or even by the former decisions of this court, unless the declarations of principles in such former adjudicated cases commend themselves by their essential soundness. There is, of course, a presumption that any marriage which has been solemnized in accordance with the laws of the jurisdiction where the ceremony is performed is valid. There is also a presumption that any marriage which has been properly and legally solemnized, and the status of the parties which has been thereby fixed and determined, shall continue until terminated by death, or by the decree of some court of competent jurisdiction having both parties before it by due process of law. If both of these presumptions could be indulged without either doing any harm to the other, it would be the best solution of the problem, but unfortunately, in order for one presumption to be indulged, it is necessary in many instances that the other must be violated. It has been said that to indulge the presumption

of the continued existence of the former marriage would place upon the second wife the burden of proving a negative, to wit, that the first wife was not dead, or that she was not divorced. This view entirely loses sight of the fact that to indulge the presumption of the validity of the second marriage places upon the first wife the burden of proving a negative, to wit, that no decree of divorce has been awarded.

In

It would seem that the latter negative would be the more difficult to prove. This record shows that Plumsteel traveled all over the world, and divorce proceedings are recognized in every state in the Union except South Carolina, and in many of them constructive service is rather loosely safeguarded. order for the first wife to affirmatively disprove the existence of a divorce, she would have to investigate the court records in all of the counties of forty-four states of the Union. But let us suppose that Plumsteel had obtained a decree of divorce in any state other than New York, the last domicil of the marriage having been in New York state, a divorce obtained by constructive service in any other state would have no validity. This has been decided in the case of Haddock v. Haddock, 201 U. S. 562, 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 Ann. Cas. 1. In that case it was held, in a five-to-four decision, that "the mere domicil within the state of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the other states by virtue of the full faith and credit. clause of the Federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action."

The domicil of the marriage was in New York state. in New York state. The husband obtained a residence in Connecticut and obtained a decree of divorce upon constructive service, and thereafter remarried in the state of Connecticut and children were born of

such marriage. Thereafter the husband, while sojourning in the state of New York, was served with summons by the wife in a suit for alimony, and it was held that the Connecticut divorce proceedings had no force or validity against the wife of the New York marriage. This case necessarily eliminates the possibility of any valid divorce decree outside of the state of New York. In this case both wives appear to have been worthy women. Both were grossly imposed upon. It would seem to be a more reasonable doctrine to require the burden of proof to be placed upon the second wife, because it was not possible for the first wife to have followed her recreant husband all over the world in order to prevent another marriage of an unlawful nature, while it was within the power of the second wife to have made inquiry or to have insisted upon some information concerning Plumsteel's antecedents. It seems much better to insist that a little ordinary business prudence should enter into a prospective marriage, and that, when a woman does not insist upon knowing something about the past life of the prospective bridegroom, it is more reasonable that she should take the consequences of her imprudence than that the consequences should be visited upon a perfectly innocent lawful wife, who had no knowledge and no means of knowledge that the second marriage was about to occur.

We are not entirely without authority on this subject in Ohio. In the case of Evans v. Reynolds, 32 Ohio St. 163, it was held that a marriage solemnized in due form is presumed to be lawful until some enactment which annuls it is produced and proved by those who deny its validity. In that case the validity of the former marriage was brought in question, there being no question as to the fact of the marriage, and yet it was held that the admission of the fact of the marriage placed the burden upon the opposing party to prove its invalidity. While the

[blocks in formation]

be presumed, surely sumption of a fortiori the pre- continuance of sumption of the

marriage.

continuance of the marriage relation should be indulged in favor of a wife who is conceded to have been lawfully married. That being the only case ever decided by this court which seems to throw any light upon the question, the views we are taking of the instant case must be held to be supported by the former declarations of this court.

The violations of marriage contracts have become so common, and obtaining a decree of divorce has become so easy and frequent, that some courts have evidently mistaken certain loose notions on the subject for sound legal principles. To follow the trend of the numerous authorities in other states would only further augment the much-discussed divorce evil. One of the chief causes of the frequency of divorce is the fact that marriages are contracted in haste, and it does not seem consonant with modern conditions on that subject to encourage marriage between comparative strangers without any inquiry by either into the past life or antecedents of the other. We therefore approve the conclusion of the court of appeals in this case, that the first wife is the lawful dependent in this

case.

Finally, it must be determined whether the first wife is a dependent within the true meaning of § 1465-82, and whether an award can be made to her estate, she having died before the cause was heard upon appeal in the court of common pleas. Our attention has been called to many authorities, English and American, as to what constitutes a dependent. It will be found, however, that the statutory provisions differ in all jurisdictions, and

(104 Ohio St. 389, 135 N. E. 669.)

it will be further found that there is not as much uniformity as might be desired in the decisions where the statutory provisions are substantially the same. We think the question of dependency can be determined by examination of the provisions of the statute without reference to other adjudicated

cases.

The section above referred to provides that

"The following persons shall be presumed to be wholly dependent for support upon a deceased employee.

"(A) A wife upon a husband with whom she lives at the time of his death."

Clearly Sarah Plumsteel was not living with her husband at the time of his death, nor for fourteen years prior thereto. She had been receiving no support from him for four or five years. It must be conceded, therefore, that she is not properly classed as a person wholly dependent. The same section further provides: "In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband, or widow, lineal descendant, ancestor or brother

or sister."

We have already found that Sarah Plumsteel was the widow, and must therefore have been a member of his family, even though he had forsaken her many years before, and even though he had neglected the natural and legal obligations he owed her. Under such circumstances it is urged that she should not be adjudged a dependent unless she was in fact receiving support from him. Upon no principle of law, reason, or common sense can such a position be maintained. Dependency rests upon an obligation

of support, and not upon the question as to whether that obligation is being discharged. being discharged. To hold that a recreant husband can relieve himself of such an obligation by his mere defiant refusal to discharge the obligation would be to permit a person to take advantage of his own wrongdoing. It is not a question of how well he fulfilled his legal obligations, or how faithful he was in fact in the performance of those promises of support which are a part of the marriage contract and which are supplemented by elaborate statutory provisions clearly defining his duty to support and maintain his wife in so far as he is able to do so; the question is: Was there a duty on his part, and has anything occurred to relieve him of that duty?

The marriage contract, supplemented by statutory enactments, clearly created the duty, and he cannot relieve himself therefrom by his own acts any more than a man can lift himself clear of the ground by tugging at his boot straps. He can only be relieved by the decree of some court of competent jurisdiction after process duly served upon the other party to the contract.

This conclusion is in harmony with the spirit of the case of Industrial Commission v. Drake, 103 Ohio St. 628, 134 N. E. 465, recently decided by this court, in which a son was held to be a partial dependent of his father, who was not in fact discharging his obligation of support in a lawful way. Under the language of § 1465-82, General Code, Sarah Plumsteel must be held to have been a partial dependent, and therefore entitled to have the question of the value of her dependency determined in accordance with the facts of this particular case existing at the time of the death of Hiram Plumsteel. Inasmuch as she has deceased before that matter has been adjudicated, it becomes a very simple proposition. Under ¶ 3 of § 1465-82 she should be awarded two thirds of his average weekly wages, and it should continue from

« ÀÌÀü°è¼Ó »