Petition for Writ of Certiorari — National Union Fire Insurance Co. v. Britton (No. 228)

<q" Peper ere ' Office-Supreme Court, U.S,

ee Sats

1 faa a | ‘46)

JAMES R BROWNING Clerk

IN THE

Supreme Court of the United States

OcrToserR TerRM 1960

N , 228

NationaL Union Fire Insurance Company or Pitrspurca,

PENNSYLVANIA, and Marker Puarmacy Company, Inc.,

Petitioners,

v.

THEopoRE Britton, Deputy Commissioner, District of

Columbia Compensation District, Bureau of Em-

ployees’ Compensation, United States Department of

Labor, and Evetyn Morton, individually and as mother

and next friend of Suirtey Ann Harris Morton, and

PeaguineE Morton, minor children, Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JoHN Fuatuer Evuis

Counsel for Petitioners

1319 F Street, N.W.

Washington 4, D.C.

July 12, 1961

Printed by Evans Printing Co, 518 Sth St. NW. Wash, D C

INDEX

Page

OPINIONS BELOW -

JURISDICTION r

QUESTION PRESENTED 4

STATUTE INVOLVED 3

STATEMENT | 3

REASONS FOR GRANTING THIS WRIT D

CONCLUSIONS s

APPENDIX A

Denial of Rehearing by the United States Court of

Appeals for the District of Columbia Cirenuit dated

April 13, 1961 - la

Opinion of the United States Court of Appeals lor

the District of Columbia Circuit dated March 25,

1961 a

Order of the United States District Court for the Dis-

trict of Columbia dated October 6, 1960 2a

Opinion of the United States District Court for the

District of Columbia dated September 26, 1960 3a

Compensation Order/Award of Death Benefits by

Theodore Britton, Deputy Commissioner, dated

February 5, 1960 17a

TABLE OF CASES

Crowell vy. Benson, 285 U.S. 22, 76 L. ed. 598, 52 S. Ct.

PSD S

Farmers Trrigation Co. ve. McComb, 337 U.S. 764, 98

L. ed. 1681, 69 S. Ct. 1297 &, 9

Hendrich v. Anderson, C.A. Utah, 191 F. 2d 242 aes

Jachson v. Jackson, 82 Md. 17, 33 A. 317 6

Lawson v. Suwanee Fruit & S.S. Co., 336 U.S. 198, 93

L.. ed. 614, 69S. Ct. 504 &, 9

Milteuw ve Escuc, 201 Mad. 190, 83 AL 2d 258 6

Offield v. Davis, 100 Va. 250, 40 SE. 910 6

Travers v. Reinhardt, 205 U.S. 423, 51 L. ed. 871, 27

EE a era een ee

REFERENCE BOOKS

Corpus Jurus Secundum, Marriage, Vol. 55, Sees. 7,

22 & 43, pp. 819, 855, 889 & 890 2... 6,7,8

STATUTE INVOLVED

Longshoremen’s and Harbor Workers’ Compensation

Act (Act. Mar. 4, 1927, ch. 509, 44 Stat. 1424, as

amended, 33 U.S.C. sec. 901 et seq.

ae

we

il

IN THE

Supreme Court of the Mnitrd States

OctToper Term 1960

Nationat Union Fire Ixstraxce Company oF PIirtspuncy,

PENNSYLVANIA, and Marker PHarmacy Company, INc.,

Petitioners,

THroporE Brtrox, Deputy Commissioner, District of

Columbia Compensation District, Bureau’ of © Eim-

plovees’ Compensation, United States Department of

Labor, and Everys Morrox, individually and as mother

and next friend of Sruruey Ann Haris Morron, and

PrearuinE Mortos, minor children, Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

To ree Poxonabee, THE Ciitee Justice ann Associate

JUSTICES OF THE SUPREME Court or THE UNITED StaTeEs:

National Union Fire Insurance Company. of Pittsburgh,

Pennsylvania, and Market Pharmacy Company, Ine. the

petitioners herein, pray that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Distriet of Columbia Circuit entered in the above

case on March 23, 1961.

2

OPINIONS BELOW

The opinion and order of the Circuit Court of Appeals

for the District of Columbia Circuit is unreported and is

printed in Appendix A hereto, infra, page 19a. The order

of the United States District Court for the District of

Columbia is printed in Appendix A hereto, infra, at page 2a

and the opinion of that court is printed in Appendix A

hereto, infra, at page 3a. The Compensation Order and

Award of Death Benefits made by Respondent Britton, the

deputy commissioner, is printed in Appendix A hereto,

infra, at page 12a.

JURISDICTION

The judgment of the Circuit Court of Appeals was en-

tered on March 23, 1961 (infra, App. A, p. 19a). Rehearing

was denied on April 13, 1961 (infra, App. A, p. la). The

jurisdiction of the Court is invoked under Section 1254(1)

of Title 28 of the United States Code.

QUESTION PRESENTED

The question presented for the consideration of the Court

is whether the Court of Appeals erred in sustaining the

District Court’s decision that the deputy commissioner had

properly found that a valid common law marriage existed

between Respondent Evelyn Morton and the deceased em-

ployee at the time of the latter's injury and resulting death

on the basis that such finding does not lack support by sub-

stantial evidence on the record considered as a whole when

that record contains a finding by the deputy commissioner

entirely inconsistent with the existence of a common law

marriage, also contains other undisputed evidence showing

that Respondent Evelyn Morton had denied that the de-

ceased emploveé was the father of either of her two children,

the ‘‘substantial evidence’* invelved was evidence of co-

habitation and reputation, and the question before the

3

Court of Appeals was whether the finding that a common

law marriage existed was currect in law.

STATUTE INVOLVED

Longshoremen’s and Harbor Workers’ Compensation Act

(Act Mar. 4, 1927, ch. 509, 44 Stat. 1424, ¢s amended, 33

U.S.C., Sec. 901, et seq.)

Sec. 902, Definitions.

. * -_ ao >. ° ?

*°(16) The tenn ‘widow’ includes only the decedent's

wife living with or dependent for support upon him at

the time of his death; or living apart for justihable

cause or by reuson of his desertion at such time.

a o ® ad e s

See. 921, Review of compensation orders.

= oe a o . . es

‘*(b) If not in accordance with law, a compensation

order may be suspende| or set aside, in whole or in

part, through injunction proceedings, mandatory or

otherwise, brought by any party in interest against the

deputy commissioner making the order, and instituted

in the Federal district court for the judicial district in

which the injury oceurred (or the United States Dis-

trict Court for the District of Columbia if the injury

occurred in the District.) **

STATEMENT

John P. Morton, an employee of the Market Pharmacy

Was Injured in the scope of employment on July 2, 1958, and

died as a result of his injuries on July 16, 1998 (infra, App.

A, pp. la-2a). Subsequently, Respondent Evelyn Morton

made a claim against the emplover for death benefits under

the Loneshoremen’s and Harbor Workers*® Compensation

Act, supra, as nade applicable in the District of Columbia

(infra, App. A, p. I4a), and a hearing was neld at which

anong other things, the existence of a marital relationship

between Evelyn Morton and the deceased emplovee was

4

contested (infra, App. A, p. 4a). At the hearing there was

introduced evidence of cohabitation and reputation as to

the existence of a common law marriage (.J.A 90, 104, 107,

108, 115). Evidence aiso was introduced tending to con-

trovert such claim and Respondent Evelyn Morton, then

claimant, was cross examined and testified directly con-

cerning such evidence (JA 91-104). Her own testimony is

that she and deceased commenced living together in Char-

lottesville, Virginia, in 1941, and that while so doing they

entered into a private agreement to consider themselves

husband and wife (JA 2-93, 102). In about 1943 or 1944,

they moved to the District of Columbia, where, as was

found by the deputy commissioner ;

++* @ *

some time between the conception and birth of

Shirley Ann flarris Morton the mother of Evely:

Morton, Peari Henrietta Harris, asked the cinplovee

and Evelyn Morton to allow her to adopt the expeeted

child, and this request was joined in by one Crawley

Rogers with whom the said Pearl Henrietta Harris

was then living; that when the child was born the said

Evelyn Morion had it registered with the vital statis-

tics authority as the child of Crawley Rogers and

Evelyn H. Harris, her own maiden name * * *** (infra,

App. A, p. 6a).

That child was horn on June 18, 1946, in the District of

Columbia (JA 94). Shortly thereafter, Respondent Evelyn

Morton (hereafter referred to as Evelyn) testified, she and

deceased moved from the District to Maryland (JA 95).

While in Maryland, she filed a supplemental birth affidavit

naming the child born to herself and Crawley Rogers as

Shirley Ann Harris, reiterating that her own surname was

Harris (JA 103). Nothing in the record indicates that the

name of that child ever was changed to Morton. After re-

siding in Maryland tor some five years, Evelyn testitied

that she and deceased returned to the District of Columbia

(JA 96), for two vears after which they returned to Mary-

land (3.1 96), where Evelyn continues to reside (JA 91).

”

In 1952, Evelyn had told the public authorities tn Maryiand

that she had no one to help her with her bills (FA 101, 135,

138). After returning to Maryland in 1954, she applied for

public assistance giving the surname of her first ehtld as

Harris (JA 134, 137). In 1956, she did not know where de-

ceased was living (.J. A 96). On oecasion, she has denied that

her other child was fathered by the deceased employee

(JA 104).

REASONS FCR GRANTING THIS WRIT

The finding that a common law marriage cristed vrolates

the rule laid down by this Court i Travers ve. Reimharedt,

205 US. 423, 1 L. ed. 871, 27, S. Ct. 567, that the parties

must live together ‘constantly and openly holding forth

to the world” that they are husband and wite.

One of the deputy commissioner's findings of fact, that:

the parties to the alleged marriage agreed that their first

child was to be considered the child of another man and the

action of Evelyn in subsequently registering that child) as

the child of that other man and herself as Evelyn Harris

rather than Evelyn Morton, is a complete public disavowa!

of any marital relationship between the parties hereto. A

fundamental consideration in this Court’s deeision in Tra-

vers Vv. Reenhardt, supra, was the uniform openness and

consistency of the relationship between the parties (205

U.S. 442). Therefor, the finding in the present case by the

deputy conanissioner that, in connection with the birth of

Evelyn's first child, the parties denied the existence of any

marital relationship between them shows that his finding

that such a relationship existed is an error of law.

Further, an analysis of the evidence. viewed in the light

most favorable to Evelyn, shows that, under the law of the

various jurisdictions where the parties to the present reta-

tionship lived from time to time, no marital relationship

could have come into being between tiem.