March 27, 1951.
Appeal from the Circuit Court for Marion County, F.R. Hocker, J.
Rosin Paderewski, Sarasota, and Virgil L. Milbrath, Ocala, for appellants.
D. Niel Ferguson and L.W. Duval, Ocala, for appellees Elnora Johnson and Cummer Lime Manufacturing Co.
Wendell C. Heaton, Tallahassee, for appellee Florida Industrial Commission.
John M. Green, Ocala, for appellee Annie B. Johnson.
On January 19, 1949, Sylvester Lee Johnson was injured as the result of an accident arising out of and in the course of his employment. Death ensued on January 26, 1949, and under our Workmen's Compensation Law, Section 440.01 et seq., Florida Statutes 1941, F.S.A., claims for compensation were filed. These claims were made by Mary Johnson, Elnora Johnson and Annie Johnson, each claiming to be deceased's legal widow and entitled to an award as such. The Deputy Commissioner concluded that Annie, deceased's last spouse, was his legal widow and such finding has reached us without reversal or modification. The Deputy Commissioner found that the presumption of validity of Annie's marriage to deceased was not successfully rebutted because (1) the whereabouts of deceased from the time of separation from his first wife until his death had not been traced convincingly; (2) it was not successfully shown that deceased had failed to obtain a divorce from either of his previous wives in some state other than Florida and (3) the proof was not convincing that deceased had confined his whereabouts to Florida during the period from 1928 to his death.
We are here concerned with the question of the validity of deceased's third and last marriage.
The deceased married Mary in September, 1926, and separated from her in 1928. In December, 1929, he married Elnora, with whom he lived until 1947 and by whom he had a child. In 1947 he separated from Elnora and in October of that year he married Annie with whom he lived more or less regularly until his death. Annie bore him one child and was pregnant at the time of his demise.
Mary's uncontradicted testimony disclosed that deceased had communicated with her at fairly regular intervals during the entire period of their separation, knew at all times of her whereabouts and visited her at intermittent periods. Because of deceased's inability to write, his mother had written his letters to Mary, in many of which he enclosed money for her. Further uncontradicted testimony by Mary and deceased's mother established their lack of any knowledge of a divorce between Mary and deceased. A certificate from the Bureau of Vital Statistics showed that no divorce had been reported for deceased and Mary between the time of their separation and his death.
The evidence reflects at most no more than a slight suspicion that deceased might have had the opportunity at some undisclosed time to cross the state line. It is not suggested that deceased availed himself of such possible opportunity. Actually the evidence, considered as a whole, shows that he was at all times a resident of Florida. This is established by the fact that although deceased had lived with four different women during the period from 1926 to 1949, he enjoyed an almost unbroken life of cohabitation with these women, who lived in Florida. It is further shown that the periods between his first and second separations and subsequent alleged marriages were devoted to exploring "green pastures" — "chasing" the not too elusive new "heart-throb."
We are fully cognizant of the presumption of validity which exists in favor of a last marriage and of the burden of rebutting this presumption which rests upon the party attacking such marriage. See Roberts v. Roberts, 124 Fla. 116, 167 So. 808; J.J. Cater Furniture Co. v. Banks, 152 Fla. 377, 11 So.2d 776. Although such presumption is one of the strongest known to the law, yet the first wife is not required to eliminate every remote possibility that a divorce may have been secured by her husband. Certainly she should not be held to a degree of proof which would force her to negative every such possibility upon the doubtful, though oft repeated, theory that anything is possible. To place a greater burden upon the first wife than was assumed and carried by Mary Johnson in this case would be unconscionable. The first wife should not be required to account for the movements and whereabouts of her errant husband for every moment of the period of time which elapsed between his desertion of her and his death. It is sufficient if the evidence when weighed collectively establishes that there could be no reasonable probability that the husband secured a divorce. Mary testified, without dispute, that she had no notice or knowledge of a divorce suit filed by Sylvester Johnson against her and that her husband had no grounds for divorce — he simply deserted her for another woman. Lula Levy, the mother of Sylvester Johnson, testified without contradiction that Sylvester never established a residence anywhere other than the State of Florida and that he never lived outside of this State.
In Hillyer Lovan v. Florida Industrial Commission, 155 Fla. 144, 19 So.2d 838, we held the evidence sufficient to rebut the presumption of validity of the last marriage. The uncontradicted, pertinent facts of this case are almost identical with the controlling facts in the Hillyer suit.
We are not receding from our former adjudications wherein we have held that the findings of facts made by a deputy commissioner and approved or confirmed by the full Commission and the Circuit Court reach us with a presumption of correctness. The question in this case is not one of conflicting testimony. The undisputed facts which establish the right of the appellant Mary Johnson to the status of Sylvester Lee Johnson's widow completely satisfy the "yardstick" set forth by us in our opinion in Hillyer v. Florida Industrial Commission, supra. See also Roberts v. Roberts, supra, and Ellenwood v. Ellenwood, 157 Fla. 640, 26 So.2d 655. Consequently, the rule that the findings made by the fact-finding arbiter come to us with a presumption of correctness is not brought into play. Actually the error in this case arose by virtue of the Deputy Commissioner's, the full Commission's and the Circuit Court's misconception of the legal effect of the uncontroverted testimony which we have hereinbefore outlined.
We, therefore, conclude that the appellant has successfully carried the burden of rebutting the presumption of validity existing in favor of Annie's marriage to deceased. The judgment appealed from is hereby reversed with directions to enter a judgment not inconsistent with this opinion.
SEBRING, C.J., and TERRELL, THOMAS and ADAMS, JJ., concur.
CHAPMAN and ROBERTS, JJ., dissent.