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June 15, 1960


Appeals, Nos. 31 and 40, Oct. T., 1960, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1959, No. 2152, in case of Mrs. Mary B. Mainor, widow of William Mainor v. Midvale Company et al. Order reversed.


Herbert A. Barton, with him Swartz, Campbell & Henry, for employer, appellant.

Wilson H. Oldhouser and Lewis Walters, Special Assistant Attorneys General, and Anne X. Alpern, Attorney General, for Commonwealth, appellant.

Alan R. Howe, with him Edward Davis, for appellee.

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

Author: Gunther

[ 192 Pa. Super. Page 369]


In this workmen's compensation case, both the employer, Midvale Company, and the Commonwealth have filed appeals from the order of the court below in remitting the record to the Workmen's Compensation Board for more specific findings of fact.

Mary B. Mainor, claiming to be the common law wife and widow of William Mainor, filed a fatal claim petition on December 6, 1956 under the Occupational Disease Act as a dependent. In this petition she set forth that her marriage to William Mainor took place in 1940. Both appellants filed answers to this petition denying, in effect, that claimant was a common law wife and on March 12, 1957, this matter came on for hearing. The referee filed a decision on January 16, 1958, awarding compensation to appellee as the common law wife of William Mainor. This adjudication was appealed to the Workmen's Compensation Board which, on April 8, 1959, reversed the referee's finding of a common law marriage and substituted its own finding that from 1940 to the date of death on November 13, 1956, Mary B. Mainor was living with the decedent in a meretricious relationship and concluded that she was not entitled to compensation.

On April 21, 1959, an appeal was filed by Mary B. Mainor to the Court of Common Pleas No. 4 of Philadelphia County, which ordered the record remitted to the board for more specific findings upon matters indicated in its opinion. From this order the present appeals were taken.

The basic question raised here, as well as before the board and the court below, is whether there was a valid common law marriage. If there was no valid common law marriage proved, the corollary is whether the court below properly remitted the record to the board.

[ 192 Pa. Super. Page 370]

Upon the death of William Mainor, a claim petition was sent to claimant from Harrisburg. She sought the aid of one of the men in charge of the Philadelphia office of the Workmen's Compensation Board in filling out the petition and she gave the information which was used to file the petition. The fourth paragraph of the printed petition required information as to the marital status of the claimant and in answer to this requirement, she stated that the marriage was a common law marriage in 1940. This petition was sworn to on December 3, 1956. At the beginning of the hearing before the referee, claimant's attorney moved to amend the date appearing in paragraph 4 from the year 1940 to April, 1953. This amendment was permitted over objection.

Claimant stated that she first met William Mainor between 1940 and 1941 and that she lived with him since 1940 from which time she was known as Mrs. Mainor. She admitted that she knew that William Mainor had a legal wife living when they began living together. It was shown that William Mainor obtained a divorce from his legal wife, Blanche Square Mainor, on April 22, 1953 and that immediately after that date he returned to her, at which time the following is alleged to have taken place: "Q. Tell us, what happened after that? Where was the divorce secured? A. North Carolina. So he came home about five o'clock in the morning. Q. Was that on the 22nd or 23rd? A. That was on the 22nd; yes. Q. Yes. Then he came home - well, the same morning he got home so that had to be the 24th. A. 23rd. So he met me and said - Q. Tell us whether he had his papers, A. He had his papers. He told me I was his wife. Q. Did he give you anything at that time? A. Gave me the ring. Q. Is that the ring (indicating)? A. That's the ring. Q. That you are wearing now? A. Yes." Over objection, she

[ 192 Pa. Super. Page 371]

    was permitted to testify further: "Q. Tell us what took place at that time? A. Well, we kissed and we didn't have time - he went to work - we both had to go to work, and he said as I told you. Q. Tell us what he said. A. He said, 'Now you are my wife,' and I said, 'You are my husband.' Q. On April 23, 1953? A. That's right."

This was all the testimony surrounding the marriage contract and all this testimony came from the lips of the claimant. She was compelled to admit, however, that up until 1953, she used and was known by the name of Mary Bibbins. As a matter of fact, she received the proceeds of a life insurance policy from the National Life and Accident Insurance Company, Nashville, Tennessee, under the name of Mary Bibbins in November of 1956.


The order of the court below is reversed.


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