Green v. Eastern Construction Company , 1 N.C. App. 300 ( 1968 )

161 S.E.2d 200 (1968) 1 N.C. App. 300

Richard GREEN, Father, Mrs. Ethel Mae Green, Widow, Walter E. Ricks, Administrator, Charles K. Green, Deceased Employee
v.
EASTERN CONSTRUCTION COMPANY, Employer and Hartford Accident and Indemnity Company, Carrier.

No. 68SC4.

Court of Appeals of North Carolina.

May 22, 1968.

Alfred S. Bryant, Durham, for Richard Green, father, appellant.

Kennon & Kennon, by A. William Kennon, Durham, for Ethel Mae Green, appellee.

PARKER, Judge.

This appeal presents the question whether there was sufficient competent evidence to support the Industrial Commission's finding of fact that Ethel Mae Green and the deceased employee, Charles K. Green, were married. Findings of fact of the Industrial Commission are conclusive on the courts when supported by any competent evidence. G.S. § 97-86. On appeal, our jurisdiction is limited to questions of law as to whether there was competent evidence to support the Commission's findings of fact and whether such findings of fact justify the legal conclusions and decisions of the Commission. Thomason v. Red Bird Cab Company, 235 N.C. 602, 70 S.E.2d 706.

Appellant contends that the Commission's crucial findings of fact in this case were based upon incompetent evidence in that Ethel Mae Green was permitted to testify that she and the deceased employee had been married to each other, that certain events had occurred at the time the marriage ceremony was performed, and that at the time of such ceremony there had been a marriage certificate which had subsequently disappeared or had been stolen. Appellant contends that this testimony was incompetent under G.S. § 8-51 and that without this testimony there was insufficient competent evidence to support the Commission's crucial findings.

The Judge of the Superior Court sustained appellant's assignments of error relating to the reception in evidence of Ethel Mae Green's testimony as to her marriage to the decedent. However, the Judge did not consider the error prejudicial, since he concluded that there was sufficient competent evidence in the record to support the Commission's ultimate finding of fact that Charles K. Green and Ethel Mae Green were married. Reserving the question whether there was error in the reception in evidence of Ethel Mae Green's testimony, we agree with the Judge's conclusion.

There was testimony of an independent witness, the president of the employer company for which Charles was working at the time of his death and who had also personally employed Ethel, who had known them for a number of years and who also knew many people in the neighborhood in which they lived, to the effect that Charles had told him that he and Ethel were married in Durham County by a colored minister in the minister's home, that Charles had claimed Ethel as his dependent wife on a Federal income tax form, that they had lived together as husband and wife and both had good reputations in the community in which they lived, and that their reputation in the community in which they lived was that of being man and wife. There was also testimony of other witnesses to the effect that Charles had made statements that he and Ethel were married and that they were reputed as man and wife. Evidence that a man and woman lived together as husband and wife and were reputed to be married is admissible to prove the marriage. Stansbury, N.C. Evidence 2d, § 244; Forbes v. Burgess, 158 N.C. 131, 73 S.E. 792.

The father appellant contends, nevertheless, that the marriage of Ethel Mae and Charles Green was illegal because her first marriage was not dissolved. A similar contention was made in the case of Chalmers v. Womack, 269 N.C. 433, 152 S.E.2d 505, in which the validity of a second marriage was involved. In that case the first spouse was still alive at the time of the trial and testified as a witness that he had never instituted an action for divorce nor had any divorce papers been served upon him. Notwithstanding this evidence the jury answered the issue in favor of the validity of the second marriage. On appeal the Supreme Court affirmed, saying (at page 436, at page 507 of 152 S.E.2d):

"Plaintiffs' assignment of error that the court erred in failing to grant their motion to set aside the verdict as being against the greater weight of the evidence cannot be sustained. The issue was properly submitted to the jury. ``"A second or subsequent marriage is presumed legal until the contrary be proved, and he who asserts its illegality must prove it. In such case the presumption of innocence and morality prevail over the presumption of the continuance of the first or former marriage." * * * (I)t is always for the jury where the demand is for an affirmative finding in favor of the party having the burden, even though the evidence may be uncontradicted. * * * Moreover, proof of the second marriage adduced by the defendant, if sufficient to establish it before the jury, raises a presumption of its validity, upon which property rights growing out of its validity must be based.' Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871; Stewart v. Rogers, 260 N.C. 475, 133 S.E.2d 155."

In the case before us the Industrial Commission as finders of the facts has found against the appellant's contention and has found on competent evidence that Ethel Mae and Charles K. Green were married about 1946 and lived together as man and wife until Charles's death in 1966. We are bound by that finding.

Appellant's final assignment of error relates to the refusal of the Industrial Commission to allow appellant's motion to be permitted to offer additional evidence, being the testimony of James Johnson to the effect that he had never obtained a divorce from Ethel Mae Green. This motion was filed on 20 April 1967, approximately two months after the hearing date and approximately six weeks after the Opinion and Award of Commissioner Marshall had been filed, and at a time when the case was pending on appeal to the Full Commission. Motions to take additional evidence on appeal before the Full Commission are governed by the general law of this State for the granting of new trials on the grounds of newly discovered evidence. (See Rule XX, § 6 of Rules of the Industrial Commission.) Under our practice, a motion for new trial on the ground of new evidence is addressed to the discretion of the trial judge, and his decision, whether granting or refusing the motion, is not reviewable in the absence of an abuse of discretion. Frye and Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E.2d 790. In the case before us the Superior Court Judge has expressly found that the ruling of the Commission denying the motion was not an abuse of its discretion, and we agree with that ruling.

The judgment of the Superior Court affirming the Opinion and Award of the North Carolina Industrial Commission is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.