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RAGER v. JOHNSTOWN TRACTION COMPANY ET AL. (10/02/57)

October 2, 1957

RAGER
v.
JOHNSTOWN TRACTION COMPANY ET AL., APPELLANTS.



Appeal, No. 52, April T., 1956, from judgment of Court of Common Pleas of Cambria County, March T., 1955, No. 854, in case of Margaret Rager, widow of Ira H. Rager, deceased, v. Johnstown Traction Company and Pennsylvania Manufacturers' Association Casualty Insurance Company. Judgment affirmed.

COUNSEL

Robert J. Wharton, with him Edward J. Harkins and Harkins & Wharton, for appellants.

Edward F. Peduzzi, with him Paul E. Beaver and Harry B. Hogemyer, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 184 Pa. Super. Page 476]

OPINION BY ERVIN, J.

In this workmen's compensation case, Ira H. Rager was accidentally killed September 22, 1953 while in the course of his employment with the defendant company and Margaret Rager claimed compensation as his widow. The only question involved is whether there was a valid common law marriage. The referee and board found that there was a valid common law marriage and awarded compensation to the claimant. The lower court dismissed the defendant's appeal and entered judgment affirming the award of compensation. The defendant and its insurance carrier took this appeal.

The law in this field is clear and well established. As the fact finding body has found in her favor, we must review the evidence in the light most favorable to the claimant and she is to be given the benefit of inferences reasonably deducible therefrom. Fiedler v.

[ 184 Pa. Super. Page 477]

    contract was in fact entered into. Com. ex rel. Kolish v. Kolish, 154 Pa. Superior Ct. 591, 593, 36 A.2d 857.

The difficulty in this case is not with the law but with the facts and the inferences to be drawn therefrom. There was ample evidence of cohabitation and reputation to establish a presumption of a valid common law marriage contract. The parties continuously lived together for approximately 11 years as man and wife and this association was terminated only by the death of the man. Both of the parties were free to enter into a valid contract at the time they started living together, the man being a widower and the woman being single. Store accounts and charge plate were made out in the names of Mr. and Mrs. Ira H. Rager; insurance contracts were made out in their names as man and wife; the decedent always introduced her as his wife; their friends knew them as Mr. and Mrs. Rager and a number of them so testified; they received many letters and Christmas cards addressed to Mr. and Mrs. Ira Rager and Mr. and Mrs. Ira H. Rager; a son of the decedent by a former marriage wrote a letter to them calling them "Mom and Pop"; they made loans from a loan company in the names of both as man and wife; and this status continued for the last 11 years of the decedent's life. It is argued, however, that the presumption of a valid common law marriage, which clearly arises from cohabitation and reputation, is destroyed by evidence given by the claimant as to the actual contract. This is the crux of the case. If she clearly testified that there was no contract, then her claim would fall. We do not believe that she so testified. The essential part of her direct examination is as follows: "Q. Now how did you happen to go there? A. Well, he seen me and he asked, he said, 'Come and live with me and make a home.' I had no place to stay, no place to go, I had to do something, so I did, so we lived up there

[ 184 Pa. Super. Page 479]

    a year or two years till, I told him until we find a better place, because I wasn't satisfied with that place. ... Q. I think my question may not have been entirely clear. What I wanted to know was whether you and Mr. Rager had any understanding or agreement of any kind before you went to live with him? A. Sure. To be husband and wife, that's the way we made it out, as long as he lived and as long as I lived. Everything went on Mr. and Mrs. R. H. Rager.... Q. And did you continue living together until the time of Mr. Rager's death? A. Yes. Q. And what was the date of his death? A. September 22nd. Q. 19 - ? A. 1953. ... Q. From 1943 until the date of Mr. Rager's death you continued living at the address mentioned a moment ago? A. Yes, I am. Q. And under the same circumstances which you told us just a while ago? A. Yes. ... Q. By whom were you supported? A. By Mr. Rager, my husband." (Emphasis added) Her relevant cross-examination is as follows: "Q. You stated when you first went to live with Ira Rager in 1941 or 1942, he said to you, 'Come and live with me and make a home.' Is that right? A. Yes. Q. Now is that the only statement that was made at that time about you and he living together? A. Yes. ... Q. Do you remember telling Mr. Rickert that there was no ceremony or oral agreement between you and Ira Rager? A. Yes, it was, I told him that, because my husband always said, 'Between the eyes of God we are husband and wife.'... Q. In other words, your position is that you had no agreement or conversation between you and your husband other than the original statements that were made back when you went to Ferndale, 'Come and live with me and make a home,' other than the fact that he said that in the eyes of God, why you were his wife, is that correct? A. Yes. Q. You never had any agreement that you would be married? A. No. I thought that

[ 184 Pa. Super. Page 480]

    was enough. He was willing to make a home for me, I was willing to go with him. I think that ought to explain enough. Q. Well, in other words then, he needed a home, and you needed a home, and the two of you started to live together? A. Yes. Q. And the only agreement you ever made was when you started, he said, 'Come and live with me and make a home,' is that right? A. Yes. Q. You never made any other agreement after that? A. To live together until either one of us died, just depends. Q. Then after that you continued to live with Ira Rager until his death on September 22nd, 1953? A. Yes. ..." (Emphasis added)

The claimant, in some of her testimony, was endeavoring to give the language used by the parties and in some of it she was giving her conclusion as to the meaning of that language. Taken as a whole, we believe that it meant that the parties intended to live with each other as man and wife until death did them part. It certainly does not mean that there was no contract at all or that they were living together in a meretricious relationship. The cohabitation and reputation evidence corroborates an agreement to live together as man and wife and it is not evidence of a meretricious relationship. President Judge IVAN J. MCKENRICK, in an opinion concurred in by Judge GEORGE GRIFFITH, carefully analyzed the testimony and we believe his analysis to be correct. He said, "It is contended on the part of the defendant here that since the claimant relied upon certain words spoken by the decedent that the burden of proving a common law marriage was not sustained by the claimant, and that the evidence of cohabitation and reputation was, therefore, of no avail to sustain the alleged common law marriage.

"The case of Caddy v. Johnstown Firemen's Relief Association of the State of Pennsylvania, 129 Pa. Superior Ct. 493, 495, is ...


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