Dahlquist v. Nevada Industrial Commission

— 111 — By the Court, Coleman, J.: 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 — 112 — filed with the defendant her claim for compensation under the terms of the act mentioned, had done and performed all other things required of her by said act, and that her said claim had been rejected. The complaint concludes with a prayer for relief. 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 — 113 — in express language the terms upon which a wife shall be entitled to contribution. It reads: “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 — 114 — must be a dependent as defined in section 26. By this section it is provided that a wife who has not at the time of the injury voluntarily abandoned her husband shall be conclusively presumed to be a dependent, and, in determining who constitutes a dependent, we must look to the relationship existing at the date of the accident or injury, irrespective of any subsequent change. This language is plain and unequivocal; nothing could be more clearly put. In fact, apparently through a superabundance of precaution, the legislature, after saying that the question of dependents shall be determined as of the date of the accident or injury, to reinforce that idea, and to put its expression beyond all cavil, provided that such should be the case “irrespective of any subsequent change in conditions.” 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 — 115 — in the evidence, and it is our duty to sustain the judgment if there is sufficient competent evidence to justify it. 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. — 116 — Two circumstances are relied upon by the defendant to overthrow the case made by plaintiff of a common-law marriage, namely, the ceremonial marriage and the statement by the deceased when seeking employment that he was unmarried, and in case of accident that the plaintiff (naming her by her maiden name) be notified. As to the first of these circumstances, it is very evident from the testimony of Mrs. Harrington that she was entirely responsible for the ceremonial marriage; that she talked the plaintiff into it. Considering the fact that plaintiff is a foreigner, but little acquainted with the customs of this country, we do not think that any significance can be attached to the fact of the ceremonial marriage. At most it may be said to have been but a precautionary step on the part of plaintiff. Just what prompted the statement of the deceased, as contained in his application for employment, we cannot say. However, it is but a circumstance, which could not nullify a marriage contract theretofore entered into, had there been one, and which-of itself does not warrant a finding contrary to that made by the court. 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 — 118 — reasons leading to the adoption of the rule invoked are sound, and the rule itself is a most wholesome one, but it has no application to the instant case. The judgment is affirmed.