Petition for Writ of Certiorari — Albina Engine & Machine Works v. O'Leary

Oftice-Supreme Gourt, U.S.

Liie a | FILED

SUBR- : ee . May 18 1964

SOHNE DRVIS, CLERK

In the Supreme Court

of the United States

aa Term, 1068/

ee

ALBINA ENGINE AND MACHINE WORKS,

an Oregon corporation, and

FIREMAN’S FUND INSURANCE COMPANY,

a California corporation,

}

Petitioners,

Vv.

J. J. OLEARY, Deputy Commissioner,

Bureau of Employees’ Compensation,

Department of Labor, and HILDA O’BRIEN,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS ..

FOR THE NINTH CIRCUIT

GRAY, FREDRICKSON & HEATH,

FLoyb A. FREDRICKSON,

Lioyp W. WEISENSEE,

1005 Equitable Bldg., Portland, Oregon 97204, .

Counsel for Petitioners. 4

STEVENS-NESS LAW PUB. CO., PORTLAND, ORE. S-64

INDEX -

Commissioner

° : Page

Citations to Opinions Below. 2

_ Jurisdiction” aie 2

I III seh So ese) eee 2

lot cen oe ee 3

. Statement of-the Case .

Reasons for Allowing the Writ 8

Question (1) Reference to State Cucieneenaiiais

Law 8

Erroneous Application of Federal Substantive

Law ; 8

‘Conflict in Principle with Decisions of this

Court and Other Courts of Appeal — . 8

The Importance of the Question ce)

Question (2) Erroneous Review of an Insufficient

Administrative Order. _ 9

Erroneous Application of’ the Administrative

Procedures Act ©

Conflict in Principle with Applicable Decisions

of this Court pee

Importance of the Question _ 11

Question (3) Conflict with ‘ania Public ne

icy of Oregon ait ae

Ce 13

_ Appendix 15

Opinion of U. S. Court of (ain. 15

Compensation Order of J. J. O'Leary, Deputy

INDEX OF AUTHORITIES

S43 7 Page

CaSES :

Florida v. U. S., 282 U.S. 194, 75 L.Ed. 291 (1931) 11.

Huard v. McTeigh, 113 Or 279, 232 Pac. 658 (1925) 12

Lavino Shipping Co. v. Donovan, 267 F.2d 59 — is

Cir., 1959) ., ee 8

Leefield v. Leefield, 85 ; Ore. 287, 166 Pac. 953 (1917) 12

Mauldin v. Sunshine Mining Co., 61 Idaho 9 17, 97

P.2d 608, 611 sa 7

2 O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 95

see L.Ed. 483 (1951)... 11

Ollschlager’s Estate v. Widmer, 55. Ore. 145, 105 Pac.

* 717 (1909) - 13

“Seaboard Air Line Ry. vz. ttactee 240 .U. S. 489

(1916) oe 8

Sturgis v. Sturgis, 51 Ore. 10, 92 Pac. 696 (1908) 12

_ Thompson.v. Lawson, 347 U.S. 334, 74 S. Ct. 55, 98

L. Ed. 733 (1954) | 7

Travers v. Reinhardt, 205 US.- 423, 31 L.Ed. 865

. (1907) sph hien 12

Wadsworth v. ilaiaia 125 Or. 428, 259 Pac. 299, |

266 Pac. 875 (1928) nisisty . 12

: 2 ‘

| STATUTES -

‘Administretive Procedure Act of June 11, 1946, 60°

Stat. 241, c. 324, § 7, 3 U.S.C. § 1006 4, 10, 11 |

Administrative Procedure Act of June 11, 1946, 60

Stat. 243, c. 324, § 10, 5 U.S.C. § 1009 4,9,11

Longshoremen’s and Harbor Workers’ Compensation

Act of March 4, 1927, c. 509, a 2, 44 Stat. 1424,

& U.S.C. § 902... Bais és “Bs

° ae iil

} ‘ 2 ’ ‘< Ss

INDEX OF: AUTHORITIES (Cont.)

: Page

- Longshoremen’ s and Harbor Workers’ Compensation

‘Act of March 4, 1927, c. 509, s ” 44°Stat. 1429,

ee ee 7 ; Se

28 U.S.C.. 1254(1) ee

33 U.S.C. § 921 oh eS ere ae Se

6 Idaho Code; p. me § 32-201 5, 7, 10, 11

“ Oregon Laws 1929, Chap. 149 ; as

Oregon Revised Statutes 656.226 : ~s

Davis, Administrative Law Treatise, § 16.07, Vol. 2,

p. 456 (1958) ae i 10

a.

In the eunsien Court

of the Ruited States

October Term, 1963

>

ALBINA ENGINE AND MACHINE WORKS,

-_ an Oregori corporation, and

FIREMAN’S FUND INSURANCE COMPANY,

a ceemunees corporation, is ok

we Petitioners,

ve

J. J. OLEARY, Deputy Commissioner,

Bureau of Employees’ Compensation,

Department of Labor, and HILDA O’BRIEN,

. papoctients.

PETITION FOR A WRIT OF CERTIORARI .

TO THE UNITED STATES COURT OF APPEALS

- FOR THE NINTH CIRCUIT

; Petitioners pray that a Writ of Certiorari issue to

seview the judgment of the United States Court of Ap-

peals for the Ninth Circuit, entered in the above entitled

case on February 28, 1964. |

oa

CITATIONS TO OPINIONS BELOW .

|

__The opinion of the Court of Appeals (R: 71-79) is re-

sola at 328 F.2d 877 and set forth in the Appendix,

infra at pages 15-27: The District Court entered no opin-

- jon. The Order of respondent J.-J. O’Leary, Deputy

Commissioner, is set forth in the Appendix, infra, ‘at

pages 28-31 (R. 8-12).

_ JURISDICTION

The judgment of the’ Court of Appeals was entered

_ on February 28, 1964 (R. 80). The jurisdiction of this

Court is invoked under 28 U.S.C. 1254°(1).

QUESTIONS PRESENTED

_ Three —— are presented:

(1) Isa woman, not married to a deceased rae

_ worker, entitled to the: compensation benefits extended

by Section 9- of the Longshoremen’s and Harbor. Work-

ers’ Compensation Act to a surviving wife if the state

compensation ‘act of the locale extends benefits to an

unmarried woman? .

(2) Are find’ngs of an administrative officer which

‘would otherwise be insufficient or’ inadequate to sup-

port an order sustainable where the reviewing court

‘. finds that the necessary facts exist although not so ex-

pressly found by the officer?

(3) Was the Court of iis: correct in finding

there was no public policy of Oregon against domicil-

iaries entering into a common-law marriage on a trip

out of the state if the réasons for the ‘strong public

policy prohibiting such rharriages within the state were —

equally applicable to such a marriage of its domiciliar-

1eés nO matter where attempted?

aete S. STATUTES

Longshioremen’s and Harbor Workers’ Compensation Act

Act of March 4, 1927,. c: 509, § 2, 44 Stat... 1424, 33

U.S.C. § 902.

“Definitions

“When used in this chapter—

“(16) The term/ ‘widow’ includes only the de-

cedent’s wife living with or dependent for support

upon him at the time of: his death; or living apart _

for justifiable cause or by reason of his desertion

at such time.” |

Act of March 4, 1927, c. 509, § 9, 44 Stat. 1429; 33

U.S.C. § 909.

“Compensation for Death

“If the injury causes death, the compensation

shall be known as a death benefit and shall be

payable in the amount and to or for i ‘benefit of

the persons following: .

“(b) If there be a surviving wife or dependent

husband and -no child of the deceased, to such sur-

viving wife or dependent husband 35 per centum of

the average wages of the deceased, during widow-

hood, or dependent widowerhood, with two years’

_ €ompensation in one sum‘upon remarriage |. .”

4

| Administrative Procedure Act

Act of June 11, 1946, c. 324, § 7, 60 Stat. 241, 5

U.S.C. § 1006.

“Hearings . . . evidence

“(c) Except as statutes otherwise provide, the

proponent of a rule or order shall have the burden

of proof. Any oral or docufnentary evidence may

be received, but every agency shall as a matter of

policy provide for the exclusion of irrelevant, imma-

terial, or unduly repetitious evidence and no sanc-

‘tion shall be imposed or ‘rule or order be issugd

except upon consideration of the whole record or

such portions thereof as may be cited by any party

and as supported by. and in accordance. with the

reliable, probative, and substantial evidence. Every -

party shall have the right to present his case or de-

fense ‘by oral or documentary evidence, to submit

rebuttal evidence, and to conduct such cross-exam-

ination as may be required for a full and true dis-

“closure of the facts. In rule making or determining

claims for money or benefits or applications for ini-

tial licenses any agency may, where the interest of

any party will not be prejudiced thereby, adopt

procedures. for the submission of all or part of the

evidence in written form.”

Act of June 11, 1946, c. 324, § 10, 60 Stat. 243, 5

U.S.C. § 1009. »

/ “Judicial Review |

“(e) Scope of Review. So far as necessary to

decision and where presented: the reviewing court

shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and deter-

mine the meaning or applicability of the terms of

‘§ °. r

any agency action. It shall-(A) compel agency ac-

tion unlawfully withheld or unreasonably delayed;

and (B) hold unlawful and set aside agency action,

findings, and conclusions found to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) contrary to constitu-

tional right, power, privilege, or immurfity; (3) in

excess of statutory jurisdiction, authority, or limita-

tions, or short of statutory right; (4) without ob-

servance of procedure required by law; (5) unsup-

ported by substantial evidence in any case subject to

the requirements of sections 1006 and 1007 of this

title. or otherwise reviewed on the record of an

.agency héaring provided by statute; or (6) unwar- -

ranted by the facts to the extent that the facts are

subject to trial de novo by the reviewing court. In

- making the foregoing determinations the court shall

review the whole record or such portions thereof

as may be cited by any party, and due account shall

_ be taken of the rule of prejudicial error.”

or

Idaho’ Code

6 Idaho Code, p. 251, § 32-201. ~

“Marriage is a personal relation arising out of

a civil contract, to which the consent of parties ca-

pable of making it is necessary. Consent alone will

not constitute marriage; it must be followed by a

solemnization, or by a mutual assumption of. mari-

tal rights, duties or obligations.”

=

Oregon Revised Statutes

ORS 656.226. .- \

“Wife and children of common-law m&rriage en-

titled to compensation. In case an unmarried man

6 |

and an .unmarried woman have cohabited in this

state as husband and wife for over one year prior

to the date ofan accidental injury received by such |

man, and children are living as a result of that re- “

lation, the woman and the children are entitled to

compensation under ORS 656.002 to 656.590 the

same as if the man and woman had been legally

married.”

STATEMENT OF THE CASE

On May 15, 1961, John C. O’Brien died in Portland,

Oregon, as a result of injuries received while in the

employ of petitioner Albina Engine & Machine Works

aboard the SS MONMOUTH in the Willamette River.

Respondent Hilda O’Brien filed a claim for survivor's

benefits with the respondent . Deputy Commissioner,

claiming to be the widow of John C. O'Brien. Petition-

ers disputed the claimant's status as widow and a hear-

ing was held by the Deputy Commissioner.

On August 14, 1962, the Deputy: Commissioner en-

tered an order awarding respondent Hilda O’Brien com-

pensation benefits as the surviving’ wife of John C.

O’Brien (Appendix 28-31). Within thirty days (Septem-

ber 11, 1962) petitioners filed a libel in the District

Court of Oregon seeking to have the compensation or-

der set aside through injunction proceedings (R.- 3-12).

The District Court had jurisdiction pursuant to § 21 of

the Act. 33 U.S.C. § 921.

On january 21, 1963, after the claimant had inter-

vened, the District Court granted the Deputy Commis-

sioner’s motion for summary judgment and. dismissed

the libel (R. 57-58).

47

The evidence presented to the Deputy Commission-

er at the hearing was generally undisputed. Petitioners

have disputed the legal and factual bases for certain

critical determinations of the Deputy Commissioner.

Shortly ‘stated, petitioners have disputed that a so-called

“common-law ‘relationship” of Oregon domiciliaries

formed while residing in Idaho while one of the parties

was already married, could ripen, after dissolution of the

former’ marriage, into a valid common-law marriage on

trips to Idaho.'*

The Court of Appeals also sustained the order of the —

Deputy Commissioner. The Court held that: a) the

claimant’s rights to compensation were to be tested by

reference to Oregon’s compensation law and that as

claimant qualified under the Oregon law, benefits under

the Federal Act should be awarded; or, b) claimant

' The Court of Appeals says there was “concededly” the con-

jugal nexus determined necessary by this Court in Thompson Pal

Lawson, 347 U.S. 334 (1954) (Appendix 72). Petitioners neve

conceded the issue as is shown by the following relevant excerpt

from petitioner’s brief in the Court of Appeals.

“However, visitors to Idaho cannot say that they have

cohabited together in Idaho. In the Mauldin case the court

said in finding a common-law marriage that the parties

‘cohabited’ as husband and wife.‘61 Idaho at 20, 97 P.2d

608 at 612. Visitors do not establish a dwelling or residence

at the place visited. There is no establishment of a marital

habitation. Although considering actions of the parties them-

selves after a valid marriage, the case of Thompson v. Law-

son, 347 U.S. 334, 74 S. Ct. 555, 98 L. Ed. 733 (1954) seems

to express the point most succinctly in requiring a ‘conjugal

nexus’ as a basis for an award of widow’s benefits under the

provisions of 33 U.S.C.A. § 902 (16). Here the claimant and

John C. O’Brien established no ‘conjugal nexus’ or cohab-

itation in Idaho or with Idaho while visiting there: there.

would be no reason for Idaho to apply the policy favoring

marriage as expressed in the cases construing the Idaho

Code § 32-201.” Appellants’ Brief pp. 14-15.

/

8 ee

—

and the deceased satisfied the requiremcits of Idaho

_ marriage law on trips there from Oregon and, as both

Idaho and Oregon would permit the Idaho marriage,

the parties were married.

7

REASONS FOR ALLOWING THE WRIT —

Question (1) Reference to State Compensation Law —

ERRONEOUS APPLICATION OF

FEDERAL SUBSTANTIVE LAW

The»Court of Appeals engaged in judicial legislation

in defining “wife” and “widow” under the Longshore-

men’s and Harbor Workers’ Compensation Act by ref-

erence to Oregon’s statute giving compensation to an

“unmarried” woman in certain circumstances. “Wife’’

and “widow” by definition include a marriage. If Con-

gress had intended benefits to be awarded unmarried

women,.it would have so stated.

CONFLICT iN PRINCIPLE WITH DECISIONS OF

‘THIS COURT AND OTHER COURTS OF APPEAL

For almost 50 years since this court’s decision in

Seaboard Air Line Ry. v. Kenney, 240 U.S. 489 (1916),

the Federal Courts have used the same ‘state domestic

relations law in deciding beneficiaries of-any federal

right. See e.g. Lavino Shipping Co. v. Donovan, 267

F.2d 59 (3rd Cir., 1959). To now initiate reference to

the state statute deemed most relevant is a radical and:

unwarranted departure from established law.*

2 Reference to the state compensation law was not urged

upon the Court of Appeals by either petitioners or rcspondents,

~

9

—

THE IMPORTANCE OF THE QUESTION

_ The mere statement of the principle that beneficiar-

ies will be determined’ by. reference to state compensa-

tion law rather than domsetic relations law establishes

the importance of the question. Even if the decision of

the Court of Appeals could be affirmed on .the alterna-

tive holding that the parties were lawfully married, this

Court should review the important question of the defi-

nition of “widow” under the Longshoremen’s and Har-

bor Workers’ Compensation Act.

hi a

Question (2) Erroneous Review of an Insufficient

Administrative Order

» ERRONEOUS APPLICATION OF THE

ADMINISTRATIVE PROCEDURES ACT

~ The Court of Appeals failed to review the record

pursuant to the standards of the Administrative Ptoced-

ure Act (5 U.S.C. § 1009) arid therefore failed to re-

verse the District Court’s order sustaining the insuffi-

cient findings of the Deputy Commissioner.

The Court of Appeals affirmed findings of the Dep-

uty Commissioner although apparently its only basis

for doing so was that petitioners were being frivolous in

suggesting the absence of necessary factual findings.

The Court said: “. . . and it borders on the frivolous

but petitioners question whether claimant ‘would qualify under

the state statute in any event. The statute extends benefits only

to a woman who had children while unmarried; the Court of

Appeals was incorrect in stating that Hilda and John had a

- child- in Oregon while both were unmarried. because the find-

‘ings show that the child was bof in 1942 before John’s first

wife divorced him in 1943.

10

to suggest that the conduct of John and Hilda in Idaho,

even if confined to the period after 1943, did not show

consent to marriage and mutual assumption of marital

duties, thus satisfying -the requirements of Idaho Code

§ 32-201 (1947).” (R. 79).

The assumptions inherent in the Court’s statement

exemplify the Court’s error in reviewing the case and

the lack of factual support in the findings of the Dep-

uty Commissioner. 5 U.S.C. .§ 1006. The Deputy made

- no findings of fact which would fulfill the requirements

of marriage in Idaho either as regards consent or as-

sumption of marital rights, duties and obligations. See

Idaho Code 32-201. :

A noted author has ably stated the reason for re-

quiring supporting findings of fact. He says: “The ob-

vious disadvantage ‘of assuming that a general finding

includes .all specific findings necessary to support it is

that the assumption may often be contrary to the fact:

the various practical reasons for requiring findings are

- subverted. by the assumption.” Davis, Administrative

‘Law Treatise, § 16.07, Vol. 2, p. 456 (1958).

CONFLICT IN PRINCIPLE WITH APPLICABLE

DECISIONS OF- THIS COURT

In this case for all that is known, the Deputy Com-

missioner may have found, if called on, that there was

no mutual consent of marriage. The Deputy Commis-

sioner found the claimant and decedent married but

he only supported this by saying that- annual visits to

Idaho created or confirmed a marital relationship. These

findings do not meet the standards of this Court as de-

11.

_ fined in Florida v. U. S., 282 U.S. 194, 75 L. Ed. 291

(1931), when compared with the appropriate Idaho

: statute, 32-201 Idaho Code.

IMPORTANCE OF THE QUESTION

Annual visits wese’ apparently not quite sufficient

for the Court of Appeals because it found that the

claimant and decedent were more than visitors and -that

they visited ‘as husband and wife” in Idaho (R. 78).

Aside from the fact that the Court of Appeals is making

its own findings, the Court lost sight of the fact that its

function was to compare the findings of fact of the Dep-

uty Commissioner with an appropriate legal standard (5

U.S.C. § 1009) and determine if the findings were sup-

ported by evidence (5 U.S.C. § 1006). The Court failed”

to do this and-its opinion, if left standing, will seriously

-impugn and erode the- decisions of this court in cases

such as O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504,

95 L. Ed. 483 (1951), defining the duties of reviewing

\ courts. |

Question (3) Conflict with Important Public Policy of

Oregon

. The Court of Appeals held Oregon’s public policy -

would not prohibit: the common-law marriage of claim-

. ant and decedent in Idaho. The Court adopted its hold-

ing on the novel basis that the State of Oregon has two

public policies: the first’ policy prohibits common-law

marriages within the. state and the second policy per-

mits common-law marriages without the state. It was

necessary for the Court to adopt such a holding because

~.

12

no stronger statement of public policy against common-

law marriages can be found than the policy: expressed

in Huard v. McTeigh, 113 Or. 279, 295, 6, 232 Pac. 658,

663 (1925). The Oregon Court stated: “In our opinion

the doctrine of common-law marriages is contrary to pub-

lic policy and public morals. It places a premium upon il-

licit cohabitation and offers encouragement to the harlot

and the adventuress. We do not sanction loose marriages

or easy divorces . . . We-are convinced that the conchi-

sions herein reached are in keeping with the public pol-

icy of this state . . .”” In ruling Oregon’s marriage stat-

utes mandatory, the Oregon Supreme Court rejected the

holding of this Court in Travers v. Reinhardt, 205 U.S.

423, 51 L. Ed. 865 (1907) that marriage laws were only

"= directory. °113 Or.-at 291, 232 Pac. at 662. Should there

be any doubt about the public policy of the State of

Oregon, one has only to measure the aftermath of the

decision in -Huard v. McTeigh, supra. The legislature

immediately passed an act legitimatizing the children

of meretricious relationships by declaring the parents,

under certain conditions, married. Oregon Laws 1925,

* Chapter 269. However, even this concession to protect

the innocent was repealed after the only case interpret-

ing the statute reached the Oregon Supreme Court. The

case of Wadsworth v. Brigham, 125 Or. 428, 259 Pac.

299, 266 Pac. 875 (1928) was followed by repeal of the

_ statute of 1925. Oregon Laws 1929, Chapter 149.°

3 It would seem that the Court of Appeals has found holdings

in certain Oregon cases not actually present there. It is submit-

ted that the Court of Appeals erroneously cited Leefield v. Lee-

field, 85 Or. 287, 166 Pac. 953 (1917) and Sturgis v. Sturgis, 51

Or. 10, 93 Pac. 696 (1908).

fa,

13

The policy reasons expressed -by the Oregon Supreme .

Court against common-law marriages are equally valid

‘whether the marriage is attempted in or out of the

state. - |

The Court of Appeals. thus decided an important

question of state marriage law in direct conflict with the

i

applicable state law. ’ re

? = \ ; —

CONCLUSION

The position of petitioners is so strong that the only

explanation of the results below is sympathy for this wom-

an. This case, unless reviewed and reversed by this Court,

will prove the accuracy of the old legal saw that “hard

facts make bad law.” The results below will have an im-

pact far beyond ghe résult in this case and effect material

and substantial changes and departures from established

Federal and State law, the merits of which should be

considered by this Court.

»

‘\

Respectfully submitted,

GRAY, FREDRICKSON & HEATH

FLoyD A.: FREDRICKSON

LLoyp W. WEISENSEE ~

Attorneys for Petitioners.

et»

These cases held that for procedural reasons no » attack’ on the

matriages in issue was possible.

In Olischlager’s Estate v. Widmer, 55 Or. 145, 105 Pac. 717

(1909), the Oregori Court held that ceremonial defects would be

overlooked, not that a ceremony was unnecessary as stated by .

the Court of Appeals.

15

APPENDIX —

‘UNITED ‘STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT:

ALBINA ENGINE AND, MACHINE Works, an}

Oregon corporation, and FIREMAN’s FUND

INSURANCE COMPANY, a California cor- |-

poration,

. +» Appellants, |

= > > No. 18,545

J. J..O’Leary, Deputy Commissioner, Bu-

reau of Employees’ Compensation, De-

—" of — and HILDA O’BRIEN,

Appellees. ,

_ [Feb. 28, 1964]

Resse, from the United States District Court —

. for the District of Oregon

Before: MADDEN, Judge of the Court of Claims, and

HAMLIN and BROWNING, Circuit —

-- BROWNING, Circuit Judge:

The sole question on this appeal is whether ‘the Dis-

trict Court erred in sustaining the determination of the

Deputy Commissioner that Hilda O’Brien was the “sur-

viving wife” of John C. O’Brien, within the meaning .

of Section 909 of the Longshoremen’s and Harbor Work- .

ers’ Act, 44 Stat. 1424 (1927), 33 U.S.C.A. §§ 901-50.

The meaning of the statute is, of course, a question

of federal law. However, since the statute does not de-

fine the term “surviving wife.”’ and since marital status

1 The term “widow” is defined in § 902(16) of the Act as “the

decedent’s wife living with or dependent for support upon him

at the time of his death; or living apart for justifiable cause or

16

is ordinarily determined by local law, it has been as-.

sumed that Congress intended the term to have the

the meaning: which it is given by local law.?: The parties

agree that the ldw of two states may -be pertinent: Ore-

gon, in which injury and death occurred, in which Hilda

and John were domiciled at the time of these events,

arfd ‘in which the Deputy Commissioner and the Dis-

trict Court sat; and Idaho, in which Hilda contends she

and John contracted. a non-ceremonial marriage. We

. think Hilda occupied the required: status under the law

of either state, and since there was concededly “a con-

jugal nexus between the claimant and the decedent sub-

sisting at the time of the latter's death . .~.,” recogni-

tion of Hilda’s claim is in accordance with the purpose ~

of the federal — Thompson v. Lawson, 347 v. S.

334, 336-37 (1954).

o | I 7

Under Oregon law Hilda was the “surviving wife”

or “widow” of John for the purposes of receiving death

benefits under the Longshoremen’s and Harbor Workers’

Act upon either of two independent grounds.

by reason of his desertion at such time.” To qualify as “sur-

viving wife” under § 909, the claimant must be a “widow’’\under

§ 902(16). Lavino Shipping Co. v. Donovan, 267 alone 59, 60

(3d Cir. 1959), and cases cited. .

2 Gibson v. Hughes, .192 F. Supp. 564, 566 (S.D.NY. 1961):

Keyway Stevedoring Co. v. Clark, 43 F.2d 983-84 (D. Md. 1930).

See also Bolin v. Marshall, 76 F.2d 668 (9th Cir. 1935); Green v. ,

Crowell, 69 F.2d 762 (Sth Cir. 1934); Beebe v. Moormack Gulf

Lines, Inc., 59 F.2d 319 (Sth Cir. 1932). Cf. Ellis v. Henderson,

204 F.2d 173, 175-76 (Sth Cir. 1953). The rule is applied under

analogous statutes. De Sylva v. Ballentine, 351 U.S. 570, 580,

(1956): Seaboard Air Line Ry. v. Kenney, 240 U.S. 489, 493-94

(1916): Metropolitan Life Ins‘ Co. v. Chase, 294 F.2d 500 (3d

- Cir. 1961); Tatum v. Tatum, 241 F.2d 401, 405 (9th Cir. 1957).

‘

Ww.

7. , ce ee rd Pf

__ First. Oregon Revised Statutes (O.R.S.) §§ 656.002-

590, .990 (1953) (the comparable state compensation

act) grants various benefits to the “wife” or “widow” of

- @ workman, and oe in O.R.S. § 656.226 Scone d as.

' follows: -

Wite and children of common-law marriage en-

-* titled to compensation. In case an unmarried man

and an unmarried woman have cohabited in this

State as husband and wife over one year prior to the

date of an accidental injufy received by such man,

and children are living as a result of that relation,

the woman and ‘the children are entitled to compen-

_sation .. . the same as if the man. and woman had

been legally married. :

The evidence is undisputed that Hilda and John

‘(then unmarried, unless‘the nonceremonial Idaho union

_ is given effect) lived together in Oregon as husband and

wife for many years priOr to John’s injury, and that a

child born in Oregon as a result of that relation was

living.

Since Hilda thus would be the “wife” or “widow” of

John for the purpose of identifying the recipient’ of

death benefits under the Oregon Workmen’s Compen-

sation Act, she should also be a “wife” or “widow” for

' the same purpose under the Longshoremen’ s and Har-

bor Workers’ Act when these terms are defined by ref-

erence to the law of Oregon. —

It should make no difference if (as has been sug-

gested) the reference in the title to O.R.S. § 656.226

(1953) to a “common- -law marriage” is inaccurate, and

the statute “does not relate. to marriage at all.” Million,

bt

18

Consanguinity and Affinity in Oregon, 23 Ore.L.Rev.

69, 90 (1944). Neither the Oregon Workmen’s Com-

pensation Act nor the Longshoremen’s and Harbor

Workers’ Act relate to or affect the marriage relation-

ship as such. And the laws of the state regarding mar-

riage are only tangentially relevant as they may bear

upon the existence of the status of “wife” or “widow”’

for the purposes of identifying recipients of benefits un-

der these remedial statutes.

The application of ordinary state domestic relations:

law developed in other contexts to the solution of prob-

lems under workmen’s compensation statutes produces ;

results which at best have only a fortuitous relation to

the remedial purposes of the compensation acts, and

often are in direct conflict with/ them. When the state

law does provide a definition of marital status deliber-

ately shaped to compensation act purposes alone, there

is no reason why that definition should not be applied

under the federal statute in preference to one drawn

from general domestic relations law. Indeed, this would

seem tc be compelled by the relationale of the rule

requiring that terms relating to financial relationships

be detined by reference to state law. The rule was ini-

tially adopted on the ground that ‘to hold otherwise

would be to create a set of federal rules in discord with

those of the states “on subjects of the most intimate

domestic character.” Seaboard Air Line Ry. v. Kenney,

240 U.S. 489, 494 (1916). This reasoning requires adop-

tion of the same definitions of marital status the state

itself would apply in essentially the s’.me situation.

/

‘

eo?

Zw ‘ 19

4

4

Second. Even if O.R.S. § 656.226 (1953) did not.

control, Hilda would qualify as John’s “surviving wife”’

or “widow” under the general domestic. relations law

of Oregon, since Oregon would recognize the noncere-

monial marriage of John ond Hilda if validly contracted

in Idaho.

The courts of Oregon hold that the statutes of that

state requiring the formal solemnization of marriage

are mandatory, and hence that the marriage relationship

is not created in Oregon unless the statutory formalities -

are complied with.° However, it is equally well settled

that under Oregon law “‘a relationship recognized in an- .

other state where it was consummated will be~recog-

nized in Oregon even though such a relationship would

not be a marriage if the same facts had been relied upon |

to create a marriage in Oregon.” Boykin v. State In-

dustrial Acc. Comm'n, 224 Ore. 76, 81-82, 355 P.2d 724,

727 (1960).* This, -of course, is but an ‘application of

the general rule that “a marriage is valid everywhere

if the requirements of the marriage law of the state

where the contract of marriage takes place are complied

with.” Restatement, Conflict of Laws:§ 121 (1934).°

Appellants nonetheless resist reference to the law of

3 Wadsworth v. Brigham, 125 Ore. 428, 259 Pac. 299 (1927),

aff'd 266 Pac. 875 (1928); Huard v. McTeigh, 113 Ore. 279, 232

Pac. 658 (1925), Note, 4 Ore.L.Rev. 308 (1925). See also Bolin v.

Marshall, 76 F.2d 668 (9th Cir. 1935); Boykin v. State Industrial

Acc. Comm’n, 224 Ore. 76, 355 P.2d 724 (1960). Compare Travers

v. Reinhardt, 205 U.S. 423, 440 (1907). |

“See also Ollschlager’s Estate v. Widmer, 55 Ore. 145, 105 Pac.

717 (1909): Sturgis v. Sturgis,.51 Ore. 10, 93 Pac. 696 (1908).

5 See also Loughran v. Loughran, 292 U.S. 216, 223 n.3 (1934);

‘Madden on Persons and Domestic Relations*75 (1931).

20

Idaho on the ground that Oregon will not follow the

_general rule where its residents enter into a noncere-

monial -marriage during a visit to another state. We

think this is not an agcurate statement of Oregon law,

and are satisfied that in the circumstances of this case

the Qsegon Supreme Court would recognize the non-

ceremonial marriage of Hilda and John if valid under

the law cf Idaho.

It is true that the state of domicile may decline to

recognize a marriage strongly offensive to its policy,

even though valid under the law of the state where the

marriage was contracted.” But in Oregon, as in most

other states, this exception to the general rule “is in-

voked only in a few situations.’ Restatement (Second),

Conflict of Laws, Tentative Draft No. 4, § 132, com-

ment b (1957).” Thus, in Sturgis v. Sturgis, 51 Ore. 10,

93 Pac. 696 (1908), the Supreme Court of Oregon held

that the marriage of a domiciliary ward was valid

though the ward contracted the marriage in another

state to avoid the disability imposed by thie laws of

Oregon. The court said, “a marriage valid where solem-

nized is valid everywhere, not’ only in other states gen-

erally, but in the state of the domicile of the parties,

even when they have left their own state to marry else-

where for the purpose of avoiding the laws of the state

of their domicile.” The court recognized only two ex-

ceptions to this rule, “viz.. marriage which are deemed |

: contrary to the law of nature as generally recognized

6 Restatement, Conflict of Laws § 132 (1934).

7 See also Comment, 11 Okla. L. Rev. 305 (1958).

me

in Christian countries, such as involve polygamy and

incest, and marriages which the local lawmaking power

has declared shall not be allowed any validity, either in

express terms or by necessary implication ... .” 51 Ore.

at 16, 93 Pac. at 698. The Oregon Supreme Court re-

affirmed the rule of Sturgis in Leefield v. Leefield, 85

Ore. 287, 166 Pac. 953 (1917), sustaining a marriage.”

- between first cousins prohibited by Oregon eH |

when contracted by Oregon domiciliaries in anothe

mae

The only instances called to our attention in which

the Oregon Supreme Court has declined to recognize

marriages between its domiciliaries validly contracted in

- other states involved marriages consummated within six

months. of an Oregon divorce in the face of an Oregon

statute providing that “neither party shall be capable

of contracting marriage’’ during that period. The latter

statute is read by the Oregon Supreme Court as pro-

viding “that persons under the prohibition of the stat-

ute are incapable of entering into contract of marriage,

and, therefore, being unable to contract the marriage,

wherever performed, it is “void abinitio.” Wright v.

Kroeger, 219 Ore. 102, 105, 345 P.2d 809, 811 (1959).°

Such marriages thus fall within the second of the two _

exceptions stated in Sturgis. |

Since a nonceremonial marriage does not fall within

either of the Sturgis exceptions, it may be anticipated

that the Oregon Supreme Court would follow the gen-

® See also In re Ott’s Estate, 193 Ore. 262, 238 P.2d (1951),

and cases cited. }

22

eral rule® that such marriages are valid everywhere,

including the domicile of the parties, if valid in the -state

where contracted. °

Appellant oles ‘upon language of the .Oregon Su:

preme Court in Huard v. McTeigh, 113’ Ore. 279, 295-

96, 232 Pac. 658, 663 (1925), characterizing ‘“‘common-

~ law” marriages as contrary to the public policy of the

state. But in Boykin v. State Industrial Acc. Comm'n,

224 Ore. 76, 355 P.2d 724 (1960), the court sustained

_a claim’ for widow’s benefits under the Oregon Work-

men’s Compensation Act based upon a nonceremonial

marriage contracted in Idaho, reversing a decision of

the State Industrial Accident Commission which had

denied the validity of the marriage. The Orégon Su-

preme Court did not suggest that state policy created

any obstacle to this result It is true that in Boykin the

parties were not domiciled in Oregon at the time of the

Idaho marriage, but there is nothing in the opinion to

indicate that the result would have been different had

they been Oregon’ domiciliaries: and in Olischlager’s

Estate v. Widmer, 55 Ore. 145, 154-56, 105 Pac. 717,

.720 (1909), the Oregon Supreme Court sustained a

marriage of a domiciliary contracted in another state,

although assuming that ceremonial requirements had

not been met. :

Finally, «ven if O.R.S. § 656.226 is not given the

determinative effect we have suggested, it at-least estab-.

lishes beyond question that the public policy of Oregon

°® Restatement, Confiict of Laws § 123 (1934): Madd& on Per-

sons and Domestic Relations 76-77 (1931).

23

does not preclide recognition of nonceremonial mar-

riages for the purpose of identifying: recipients of death

benefits under legislation such as the -Longshoremen’s

and Harbor Workers’ Compensation Act, and that the

public policy of Oregon would affirmatively favor Hil-

da’s claim in the circumstances of this case.

. Since it appears that Oregon would recognize a non-

ceremonial marriage contracted in Idaho by Hilda and

'. John, if valid under Idaho law, we turn{to the latter

inquiry. .

II

Idaho’ {eognizes nonceremonial marriages.'° Under

the pertinent Idaho statutes, there are only two require-

ments for a valid. marriage: (1) “consent,” and (2)

“mutual assumption of marital “rights, duties or obliga-

tions.” Idaho Code § 32-201 (1947.)'' An“ ooth “may

be manifested. in any form.” Idaho Code § 32-203

(1947).'* o-

_ Hilda and John lived toether as husband and wife

continuously from 1938 until John’s death in 1961, and

10The leading Idaho decision.is Huff v. Huff. 20 Idaho 450,

118 Pac. 1080 (1911).-The Idaho authorities are reviewed in Boy-

kin v. State Industrial Acc. Comm'n, 224 Ore. 76, 355 P.2d 724

(1960). ;

|' Idaho Code § 32-201 (1947) provides:

Marriage is a personal relation arising out of a civil con-

tgact, to which the consent of parties capable of making it is

necessary. Consent alone will not constitute marriage; it must

be followed by a solemnization, or by a mutual assumption

marital rights, duties or obligations.

2 Idaho Code § 32-203 (1947) provides:

Consent to and subsequent consummation of marriage may

be manifested in any form, and may be proved under the same

general rules of evidence as facts in other cases. ;

24

were accepted as such by their families and the com- _

munities in which they lived. Their relationship began

in Idaho, and two of. their ,thféé children were born

there. They moved to Oregon in 1942, where they lived

until John’s death. Each year from 1942 until John’s

accident in "1956 they returned to Idaho with their chil-

dren, and spent a week or two visiting their parents.

"John: had married one Goldie J. Harper in 1928.

Although he’ separated from Goldie in 1937, before his

union with Hilda, the marriage was not formally dis-

_-solved until 1943. The existence of this undissolved prior -

marriage prevented a valid marriage between Hilda and

John at the inception of their relationship. However,

under Section 32-201 of the Idaho Code, “consent is a

‘continuing thing” (Jn re Foster,-77 Idaho 26, 32, 287

P.2d 282, 285 (1955)),'? and “although the contract and

_ consent marriage . . . was absolutely void at the time,

the more reasonable rule seems to be that a continuance

of the marital relation and assumption of its duties,

‘after the impediment ceased . . . amounted to a con-

sensual marriage, under the statute, and could not be

assailed or avoid.” Morrison v. Sunshine Mining Co., 64

Idaho 6, 12, 127 P.2d 766, 769 (1942).'*

Accordingly, the Deputy Commissioner found that

Hilda and Junn “éntered into a common-law -relation-

13 See also Boykin v. State Industrial Ace. Comm’ n, (224 Ore.

76, 85, 355 P.2d 724, 728 (1960).

14 Thomey v. Thomey, 67 Idaho 393, 397-98, 181 P.2d 777, 779

(1947): Nicholas v. Idaho Power Co., 63 Idaho 675, 680-81, 125

P.2d 321, 323-24 (1942); Huff v. - Huff, 20 Idaho 450, 460-61, 119

Pac. 1080, 1083 (1911). Fe

25

ship” in Idaho in 1938, and “that the annual visits of

the deceased and the claimant to Idaho after the dis-

solution of the marriage of the deceased on April 10,

1943, were sufficient to create or confirm the marital

relationship which existed between the deceased and the

claimant from 1938 until his death in 1961. . . .” .

In attacking this conclusion, appellants appear to

argue (1) that Hilda and John could not contract a

.monceremonial marriage during visits ‘to Idaho while

domiciled in Oregon, and (2) that even assuming that

Idaho law would permit such a marriage, it would not

do so without proof of an explicit agreement in Idaho

during the visits.

Q) There is no apparent reason why Idaho should

object to a marriage of nondomiciliaries visiting in the .

state, so long as they comply with Idaho law, and

Idaho. Code § 32-201 (1947) draws no distinction be-

tween residents and nonresidents.'* Moreover, John and

Hilda’ s connection with Idaho was not that of mere

visitors. As we have noted, their relationship began .

there: they lived in Idaho as man and wife from. 1938

to 1942: two of their three childrén were born in Idaho:

and both John and Hilda had parents in Idaho whom

they visited annually, as husband and wife, accompanied

by their children.

The Idaho Supreme Court has repeatedly affirmed

that “the rule adopted in this jurisdiction is that...

every intendment of the law leans to matrimony.”

15 Cf. Taintor, Marriage in the Conflict “a Laws, 9 Vand. L. Rev.

607, 620-21 (1956).

, .

26

(Maudlin v. Sunshine Mining Co., 61-Idaho 9, 17, 97

P.2d 608, 611 (1939)),'® and-it borders on the frivolous

to suggest that the conduct of John and Hilda in Idaho,

even if confined to the period after 1943, did not show

consent to marriage and mutual assumption of marital

duties, thus’ satisfying the 1equirements of Idaho Code

§ 32-201 (1947). |

2) It is true that some jurisdictions appear to fol-

low a rule that te.establish a valid marriage after the

removal of a legal impediment there must be some evi-

‘dence of a new marriage agreement in addition to mere

continuation of the prior relationship.'’? But the Su-

preme Court of Idaho has expressly rejected this re-

quirement in cases involving Idaho domiciliaries, and

nothing in those decisions or in the Idaho statutes sug-

gests that a different rule will be applied to nondomi- ;

ciliaries. All that Idaho law demands is a continuation,

following removal of the impedimert. of conduct suf-.

ficient to constitute a manifestation “in any form” of |

the “consent” and “mutual assumption of marital rights,

duties or obligations,” required by Idaho Code § 32-201

(1947)."° eae

16 See also Thomey v. Thomey, 67 Idaho 393,°397. 181 P.2d

777, 779 (1947): Nicholas v. Idaho Power Co., 63 Idaho 675, 681-

82, 725 P.2d 321, 324, and cases cited.

17 See, e.g., Tatum v. Tatum, 241 F.2d 401, 409-10 (9th Cir.

1957): In re Binger’s Estate, 158 Neb. 444, 63 N.W.2d 784, 788-89

(1954); Madden on Persons and Domestic Relations 73-75 (1931).

16 See notes 11, 12, supra: Thomey v. Thomey, 67 Idaho 393,

396-98, 181 P.2d 777, 778-79 (1947). See also Warner v. Warner.

76 Idaho 399, 405, 283 P.2d 931, 934 (1955): Morrison v. Sunshine

Mining Co., 64 Idaho 6, 12, 127 P.2d 766, 769 (1942): Nicholas v.

Idaho Power Co., 63 Idaho 675, 680, 125 P.2d 321, 323 (1942):

Huff v. Huff, 20 Idaho 450, 460-63, 118 Pac. 1080, 1083-84 (1911).

27

We note that the record contains a letter opinion

addressed to the Deputy Commissioner by the Attorney

General of Idaho stating that under Idaho law “the

- appearance of the parties in Idaho as husband and wife

after the impediment to the marriage was removed

would be sufficient to create the marital relationship or

cdénfirm it.” or AT aap

Affirmed.

[

28

*

€ |

| U. S. DEPARTMENT OF LABOR

BUREAU OF EMPLOYEES’ COMPENSATION

FOURTEENTH COMPENSATION DISTRICT .

In the matter of the claim fot com- )

pensation under the Longshoremen’s )

,and Harbor Workers’ Compensation )

Act )

‘ y

HILDA V. O’BRIEN )

as Claimant, ) COMPENSATION

: paar ORDER

; Roun C. O’BIEN, DECEASED) ) AWARD

) oF DEATH |

Vs. - ) BENEFITS

; z. ) . Case No.

ALBINA ENGINE & MACHINE _ ) 73-2119

~ WORKS er )

Employer, )

)

FIREMAN’S FUND INSURANCE.)

COMPANY )

— Insurance Carrier. )

Such investigation in respect to the above-entitled

claim having been made as is considered necessary, and

a hearing having béen duly held in conformity with

- law, the Deputy Commissioner flakes the following

FINDINGS OF FACT ~

That on the 17th day of June, 1957, the deceased

above named was in the employ of the employer above

.named at Portland, Oregon, in the Fourteenth Com-

pensation District established under the provisions of

the Longshoremen’s and* Harbor Workers’ Compensa- |

‘tion Act, and that the “liability of the employer for

29

compensation under said Act was insured by Fireman’s

Fund Insurance Company; that on said date the de-

ceased herein while performing service as a boilermaker

for the employer and engaged in work incidental to’ the

repair of the vessel, SS ‘MONMOUTH, which was .

afloat at Swan Island Dock, sustained personal injury

resulting in his disability when while working in a tank

aboard’ said vessel the scaffolding on which he was

standing gave way causing him to fall to the bottom of ©

the tank in consequence of which he suffered multiple .

— fractures and a severe brain injury; that as a result of

- the injury sustained.the deceased was wholly disabled

from June 18, 1957 to May. 15, 1961, inclusive, and he

was entitled to 204 weeks’ compensation at $54.00 per

week in the amount of $11,016.00 for such temporary

total disability; that. the employer and carrier paid to

the deceased compensation in the amount-of $11,016.00;

that the death of the deceased employee occurred on

May 15, 1961, and his death was causally related to

the injury .he sustained on June 17, 1957, while in the

employ of the. employer above named: that written. no-

tice of death was given within 30 days: that it is ad-

mitted that at the time of his injury the average weekly

wage of the deceased employee exceeded $81.00; that

on July 2, 1929, the deceased was married -in the State

of Idaho and continued to live with his wife in Idaho

until March 11, 1937, when they separated and his wife

moved to the State of Oregon; that the deceased con-

tinued to reside in Idaho, and during November of 1938

‘the claimant above named and the deceased entered

into a common-law relationship in Middleton, Idaho;

30

that they continued to live in the State of Idaho until

September 15, 1942, when they moved to the State of

Oregon; that while they were residents of Idaho, two

children were born to them and another child was born

to them in the State of Oregon during the year 1942;

_ that on April 10, 1943, the marriage of the déceased was

dissolved by divorce proceedings in the State of Oregon.

instituted by the wife of the deceased; that during the

years 1943 to 1956 the claimant and the deceased made

‘ annual visits to relatives in the State of Idaho and

would remain in Idaho for a week, or sometimes two

weeks, during each visit; that during the years they

lived together the deceased and the claimant held them-

selves out to be, and were known as, husband and wife:

that the annual visits of the deceased and the claimant

to Idaho after the dissolution ; of the marriage of the

deceased on April 10, 1943, were sufficient to create or

confirm the marital relationship which existed between

the deceased and the claimant from 1938 until his

death in 1961; that the claimant, Hilda V. O’Brien, who —

was born November 1, 1915, is the surviving wife of

the deceased and as such is entitled to death benefits

.for her support at the rate of $28.35 per week; that the

accrued death benefits to which the claimant is entitled

from May 16, 1961 to August 13, 1962, inclusive, a

period ‘of 65 weeks at $28.35 per week amount to $1,-

842.75, no part of which has been paid by the employer

or insurance carrier; that the employer and carrier are

liable for and have paid reasonable funeral expenses of

the deceased in the amount of $400.00.

31

Upon the foregoing findings of fact, the Deputy

Commissioner makes the following

AWARD

That the employer, Albina “Engine & Machine

Works, and the insurance carrier, Fireman’s Fund In-

surance Company,. shall pay to Hilda V. O’Brien, sur-

viving wife of the deceased death benefits for her sup-

port. as follows: 65 weeks at $28.35 per week from May

16, 1961 to August. 13, 1962, inclusive, in the amount ~

of $1,842.75, which amount the employer and carrier

. are directed to pay forthwith in one sum (less attor-

neys’ fees hereinafter provided for) and shall thereafter

continue payments of death benefit: to the claimant,

Hilda V. O’Brien, for her support in bi-weekly instal-

ments at the rate of $28.35 per week, “subject to the

limitations of the Act or until otherwise ordered. A fee.

in the amount of $200.00 is hereby approved in favor -

of Pozzi, Levin & Wilson, Attorneys at Law, Suite 806,

Cascade Building, Portland 4, Oregon, for services ren-

dered the claimant in connection with the presentation

of her claim for death benefits, samie to constitute a

lien upon and be payable from this award. |

Given under my hand at Seattle, Washington

this 14th day of August, 1962

{/s/ J.J. Oo’ LEARY ~

Deputy Commissioner.

Fourteenth a District