Before MARIS, STALEY and HASTIE, Circuit Judges.
Problems at once absorbing and perplexing confront a court when the facts of an appeal involve the presumption of the continuance of a prior marriage in direct conflict with the presumption of the validity of a subsequent marriage. This is such an appeal.
Fred Headen was employed as a longshoreman by the Jarka Corporation. He was killed on April 9, 1953, while assisting in unloading cargo from a vessel of the defendant.
Plaintiff is administratrix of the estate of Fred Headen. She brought action in the district court under the Pennsylvania wrongful death act, alleging that she was the lawful widow of the decedent; she sued also on behalf of the estate under the Pennsylvania survival statute. Jurisdiction was based on diversity of citizenship. Liability was admitted by defendant. After jury trial to determine damages, judgment was entered on behalf of plaintiff in the amount of $41,328 in the wrongful death action and in favor of plaintiff in the amount of $795.38 in the survival action. Judgment was also entered in favor of Jarka Corporation in defendant's third-party action against it. No appeal was taken from the latter judgment.
Defendant filed a post trial motion for judgment notwithstanding the verdict or in the alternative for a new trial. By order of April 15, 1957, the district court vacated plaintiff's wrongful death judgment and entered judgment for the defendant, leaving undisturbed the judgment under the survival statute. It is from the former judgment that the alleged widow of Fred Headen appeals.
The underlying issue is whether, upon the basis of the following facts, appellant is the lawful widow of decedent Fred Headen, or whether at the time of his death she was still married to her first husband, Albert Benton.
On May 26, 1918, appellant and Albert Benton were married in North Carolina. Soon afterwards a daughter was born to them. Appellant lived with Benton until she separated from him in 1923; she continued her residence in North Carolina.
On February 16, 1930, Albert Benton married Mary Davis in a ceremonial marriage at York County, South Carolina. They lived together as husband and wife until 1954, during which time nine children were born to them.
On August 31, 1938, approximately fifteen years after appellant separated from Benton, appellant and decedent Fred Headen were married at Elkton, Maryland, in a ceremonial marriage. They lived together in Philadelphia, Pennsylvania, until his death in 1953. No children were born of this union.
The validity of the marriage in question may be sustained only if there is proof of the dissolution of appellant's marriage to Benton. Evidence taken at the trial reveals the following: Appellant testified that in 1930, approximately seven years after her separation from Benton and while she was still residing in North Carolina, she received some papers from a court in South Carolina where Benton had applied for annulment of the 1918 marriage. Appellant signed one set of the papers and returned them to the South Carolina court. The other set was left at her father's home in North Carolina, but after his death appellant was not able to find the documents. It should be noted at this point that there was no annulment on record at York County, South Carolina.
The district court also received into evidence a petition and affidavit filed by Benton in a proceeding in York County, South Carolina, brought by him in 1954 to declare valid his second marriage. The proceeding was sanctioned by a South Carolina statute, Section 20-42, Code of South Carolina, which reads as follows:
"When the validity of a marriage shall be denied or doubted by either of the parties, the other may institute a suit for affirming the marriage and, upon due proof of the validity thereof, it shall be decreed to be valid and such decree shall be conclusive upon all persons concerned."
The petition supporting the 1954 proceeding contained a story to the effect that Benton visited the courthouse at York County, South Carolina in 1930, and after signing certain papers, was informed that his marriage to appellant had been annulled. Upon consideration of this petition and various affidavits, the court of York County in 1954 issued a decree declaring valid and binding the second marriage of Albert Benton. The court decree recited as a subsidiary finding of fact that the marriage of Benton and appellant had been annulled in 1930 at York County. While both the petition and the court's decree were admitted into evidence, the district court instructed the jury to disregard the final decree of the court, but permitted ...