It is conceded by the appellant that the deceased workman and his employer were under the compensation act and that his death was caused by accident arising out of and in the course of his employment.
The evidence is without dispute that appellees were his actual dependents being supported through his labor.
Consistent with legislative policy of liberal application evidenced in the enactment of the workmen's compensation law, it is a settled rule of this court that on review in such cases by writ of certiorari, a bill of exceptions serves no purpose unless the statement of the evidence by the trial court is meager or omissive, and if there is any evidence found in the statement thereof by the trial judge or when resort to a bill of exceptions justifies found in such bill of exceptions which supports the conclusion of fact stated in the judgment, the finding and judgment of the trial court will not be disturbed. Gulf States Steel Co. v. Griffin, 214 Ala. 126, 106 So. 898; Sloss-Sheffield Steel Iron Co. v. Alexander et al., 241 Ala. 476, 3 So.2d 46.
The majority opinion, in my judgment, ignores this settled rule, — the court, as the prevailing opinion shows, proceeds in this case to settle a controverted issue of fact. Clearly there is evidence and tendencies of evidence in the statement of the trial court that supports the conclusion, "that the marriage between the plaintiff and Will Watford was valid and legal and that the plaintiff is the lawful widow of Will Watford and that the children named herein were his lawful children and lawful dependents under the Workmen's Compensation Act of Alabama."
The undisputed evidence shows there was a ceremonial marriage and "The presumption that a marriage is legal and valid in all respects is one of the strongest known to the law, and while it is true that the marriage relation when once proven is presumed to continue, yet this presumption attaches with full force to the latest marriage, the reason being that the presumption of innocence, morality and legitimacy will counterbalance and preponderate against the presumption of the former relations. * * *" Sloss-Sheffield Steel Iron Co. v. Alexander et al.,241 Ala. 476, 479, 3 So.2d 46, 48.
This presumption is not a mere administrative presumption which disappears when evidence to the contrary is introduced, but is a presumption of law, which, as a matter of evidence, prevails until the evidence, in the judgment of the triers of fact, overcomes it. Protective Life Ins. Co. v. Swink, 222 Ala. 496,132 So. 728. The prevailing opinion overturns and holds for naught the evidence as to the marriage of Will Watford and appellee Mary Lee Watford on the ground that there was evidence going to show that Watford had formerly married Mary Gooden. As to this relation, in the statement of the evidence, the trial court observes:
"Mary Gooden herself testified in the present case to the effect that she married Will Watford in Birmingham in March, 1920, and had never been married before and that she got no divorce from Will Watford.
"When Mary Gooden left Will Watford in 1923, the evidence shows that a negro man by the name of Hill left the same town at the same time, and there is other evidence that Mary Gooden, after leaving Will Watford, was known as Mary Hill."
The court further states: "No claims for compensation are made in this case except by Maggie Lee and her children. Mary Gooden had been absent from Will and had not been in communication with him for approximately nineteen years prior to his death. All of Will's children, whether legitimate or illegitimate, except his children by Maggie Lee, are either dead or else above the age to receive compensation under the Workmen's Compensation Act of Alabama." *Page 432
In respect to the presumption of the validity of the marriage of Mary Lee and Will, the trial court in its statement of conclusions, observed: "With reference to the presumption of the validity of marriage at the time a ceremony of marriage is performed, and with reference to the presumption that former marriages have been dissolved, this Court must also take into consideration the doctrine of such cases as that of Williams v. Wilson et al. [210 Ala. 289], 97 So. 911 [913], where our Supreme Court, speaking through Mr. Justice Bouldin, had this to say, 'In raising presumption, certain principles of justice [in] and fair dealing among men must always obtain in the judicial mind. It should be a natural inference from the facts of the case. It should ascribe to human conduct the quality and motive of normal men and women, unless otherwise shown.' "
With reference to the contention of the defendant that Will Watford was not capable of contracting a marriage to the plaintiff because of his prior marriage to Mary Gooden, the court calls attention to the statement of facts heretofore set forth to the following effect: "The marriage between the plaintiff and Will Watford was a ceremonial marriage. Undoubtedly Will Watford seriously intended to establish a home and raise a family. At the time of this trial he had been dead for many months. Accordingly the parties and the Court could not have the benefit of his testimony concerning what he had done or what he had failed to do with reference to securing a divorce from Mary Gooden. The Court has previously pointed out the difference between such a marriage and that of Will Watford and Maggie Lee and the ceremony which was performed by the magistrate between Allen Washington and Maggie Lee. The presumptions of law concerning such a marriage as that between the plaintiff and Will Watford are powerful and justly so, to the effect that the marriage is legal and valid and that all prior marriages have been dissolved. Not only the welfare of the man and woman but the welfare of the children to be born, and there were seven of them born of this marriage, as well as the welfare of society in general powerfully impels the Courts to look with favor on these presumptions, which are pointed out and discussed, with citations from previous cases, in the late case of Sloss-Sheffield Steel Iron Co. v. Alexander [241 Ala. 476],3 So.2d 46."
The court further observed:
"The dire consequences of overturning and disregarding the presumption of the validity of this particular marriage and the presumption that all prior marriages, if any, had been properly dissolved by law are well illustrated in this case. Here we see an instance where a man and woman, Negro, it is true, but with every reason to desire and to consummate a legal and valid marriage, secured a marriage license and had a ceremonial marriage performed. We see a case where a man established a home for his wife, worked faithfully to support the wife and the seven children who were born to them. There was every sound and logical reason why he should have taken the necessary steps to make that marriage valid and to make his children legitimate, so that they might bear his name, inherit his property, if he had any property at the time of his death, and take as his children the compensation that would be payable at his death in lieu of the wages he would earn and furnish to them in case of his continued health and life.
"The burden of proof to show that the prior marriage to Mary Gooden had not been dissolved was on the defendant in this case. At best, the defendant showed that between the time that Mary Gooden left Will Watford and the time that Will Watford married Maggie Lee, a period of approximately eight or nine years, Will Watford lived in St. Clair County and worked in a coal mine, and that the Register of each Division of the Chancery Court in that County had examined the index of records of the Chancery Court in his Division and found no such case indexed as that of Will Watford versus Mary Watford. It may have been impossible to show by reliable testimony that Will Watford had remained without any interruption in that county during all of those years, as indeed the testimony does not show that he remained continuously in that county during those years. In the main, the testimony does show that he lived in that county and worked in the mines there. In view of the fact that there are strong presumptions of validity which should attend and do attend such a marriage, the Court is unwilling to hold that the testimony is sufficiently strong to reasonably satisfy the Court that Will Watford did not have an opportunity to secure and that he did not secure during those years a *Page 433 divorce from Mary Gooden. It is true that Mary Gooden without objections not only stated that she did not secure a divorce but also stated that Will Watford did not secure a divorce. But the Court judicially knows that Mary Gooden might not have known about a divorce and yet one might have been secured by Will Watford. The testimony is clear that Mary Gooden did not communicate with Will Watford from the time she left him until the time he died, some eighteen years or more. She moved to a distant State and remained there, and there is no proof that Will Watford knew where she was or could have given her a notice or had notice given to her by the Court concerning a petition for divorce. Accordingly the Court follows the presumption delineated in our cases and gives effect to them and holds that Will Watford had the legal capacity to contract the marriage with this plaintiff.
"The result is that the Court finds and holds that the marriage between the plaintiff and Will Watford was valid and legal and that the plaintiff is the lawful widow of Will Watford and that the several children named herein were his lawful children and lawful dependents under the Workmen's Compensation Act of Alabama."
The conclusion and finding of fact stated in the judgment of the trial court are made final and conclusive between the parties by the statute, and on review, if there is legal evidence to support such finding, it will not be disturbed. Code 1940, Tit. 26, §§ 297-304; Hearn v. United States C. I. P. F. Co., 217 Ala. 352, 116 So. 365; Trannon v. Sloss-Sheffield Steel Iron Co., 233 Ala. 312, 314, 171 So. 898. The defense of the appellant depended on the proof of a negative — that the alleged marriage between the dead workman and Mary Gooden was not dissolved, — and the evidence adduced by it to that end was not sufficient to overcome the presumption of honesty, decency and innocence attending the ceremonial marriage of appellee and the deceased workman. Protective Life Ins. Co. v. Swink, 222 Ala. 496, 122 So. 728.
There is no question of double liability in this case. Mary Gooden was not a claimant and had not received support from Will Watford within twelve months. Code 1940, Tit. 26, § 280; Wilson v. Birmingham Electric Co., 219 Ala. 436, 122 So. 411. All of the equities are in favor of the appellees and the prevailing opinion applies to the case a harsh and strict rule which denies them protection.
I am of opinion that the judgment of the circuit court is sound and should be affirmed and, therefore, respectfully dissent.