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JOHNSON v. J. H. TERRY & CO. ET AL. (11/13/56)

November 13, 1956

JOHNSON
v.
J. H. TERRY & CO. ET AL., APPELLANT.



Appeal, No. 194, Oct. T., 1956, from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1955, No. 10848, in case of Nora Johnson, widow of Christopher Johnson, dec'd. v. J. H. Terry & Co. et al. Judgment reversed.

COUNSEL

Edmund B. Spaeth, Jr., with him Frederick L. Fuges, and MacCoy, Evans & Lewis, for appellant.

Alexander F. Barbieri, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

[ 182 Pa. Super. Page 260]

OPINION PER CURIAM

That Christopher Johnson came to his death on February 2, 1953 from the accident in the course of his employment with the defendant is conceded, as it must be. The compensation authorities found that claimant on that date was his common law wife and on the finding made an award of benefits to her as his widow. Christine Murphy, a young granddaughter of decedent, had been a member of his household since her birth on September 18, 1952. He stood in loco parentis to the child and had supported her up to the time of his death. Accordingly an award was also made for the support of this dependent child. There can be no question as to the propriety of that part of the order. The validity of that award was not raised in the court below and cannot be considered here. Moreover the referee specifically found in favor of claimant as natural guardian of the child on sufficient uncontradicted evidence and the board affirmed the finding and the award. The controverted issue here is the right of claimant to benefits as decedent's widow. This right is dependent upon the validity of a common

[ 182 Pa. Super. Page 261]

    law marriage allegedly entered into by her with Christopher Johnson in March 1932.

Our approach to the question must be something more than mere tolerance of the common law of this State which recognizes the validity of such informal marriage contracts entered into without compliance with the statutory requirements of the Act of June 23, 1885, P.L. 146 and its amendments, 48 PS ยง 1, et seq. But in this case where claimant asserts and relies on a common law contract the validity of the alleged marriage must be substantiated by "credible and competent testimony sufficient to satisfy a reasonable mind as adequate proof of a marriage at common law": Buradus v. Gen. Cement Prod. Co., 159 Pa. Superior Ct. 501, 48 A.2d 883.

Claimant had entered into a prior ceremonial marriage in Philadelphia with one James B. Dougherty in 1911. Six children were born to them. In February 1930 Dougherty disappeared from the home, with all of their current cash savings, under circumstances which charge him with desertion. As a means of supporting herself and her children claimant then took in boarders, among them, the decedent, Christopher Johnson. She did not divorce Dougherty and she never had notice of any divorce action brought by him. In the early part of February 1932, less than two years from the date of the desertion, Dougherty reappeared at her door and she testified that she "chased him." And when asked: "... why didn't you want to take him back?" she answered: "Well, I had Mr. Johnson; he claimed he would keep me and the children." Because of his need Dougherty then was taken in by his and the Claimant's daughter, Mary Ryan, and lived in her home in Philadelphia for about six months. Mary Ryan testified that after "He'd been living with

[ 182 Pa. Super. Page 262]

    me a couple of weeks" he stated that he had divorced "my mother down south" and had married another woman. According to this witness Dougherty referred to divorce papers which he said he then had with him in his suitcase but they were not produced. Mary Ryan reported this conversation to her mother. According to claimant's testimony she entered into a common law marriage with Johnson about the 17th of March, 1932. She however did not fix the time when she learned of the above statement of Dougherty to Mary Ryan, with reference to March 17, 1932, whether before or after that date. The compensation authorities found that a valid marriage contract was then entered into, in words of present assent. From that date claimant and Johnson lived together as man and wife in Philadelphia and were so regarded up to the date of Johnson's death. Two children were born to them.

Dougherty's alleged statement to Mary Ryan reported to claimant, and admitted over the defendant's objection, was pure hearsay and was not evidence of its truth. Accordingly even if claimant relied on the hearsay assertion of Dougherty that he had been divorced from claimant, although it would have some bearing on the question of her innocence in entering into the informal marriage contract with decedent, yet it cannot be accepted as proof that she was competent to remarry. The appellant is right and the lower court was wrong in its conclusion that the widow's belief in itself, that the first marriage was dissolved, made the second marriage valid. A woman cannot at the same time legally have two husbands; "'and one who has married once cannot lawfully marry again unless the first marriage ...


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