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July 22, 1943


The opinion of the court was delivered by: FORMAN

A complaint was filed on behalf of the above-named plaintiff on August 2, 1940, in which it was alleged that she is the widow of George Albert Franzen, deceased. She was living with him as his sole dependent at the time of his death on August 6, 1939.

He was pursuing his trade as a pipefitter in the employ of the defendant in the construction of an operating plant at Baton Rouge, Louisiana, and was in the act of disconnecting a pipe when his body made contact with a lighting circuit which instantly electrocuted him.

 There are further allegations in the complaint, among which are the diversity of citizenship of the parties and that the action arose under the Employers' Liability Act of the State of Louisiana, Act No. 20 of 1914, as amended, by virtue of which it was claimed for the plaintiff that she was entitled to receive from the defendant workman's compensation for a period of three hundred weeks from August 7, 1939, at the rate of $14.30 per week.

 The differences between the parties hereto have followed a tortuous path of litigation. Prior to the filing of her complaint in this court, she instituted a proceeding under the New Jersey Workmen's Compensation Laws, N.J.S.A. 34:15-1 et seq., in 1939 and hearings were conducted in the New Jersey Workmen's Compensation Bureau which resulted in a determination and judgment entered in her favor on January 2, 1942, wherein the Commissioner held (1) that the contract of employment was effected in the State of New Jersey and that the Laws of the State of New Jersey control, and (2) that petitioner was the common law wife of the decedent by virtue of a marriage contract entered into between the parties in the State of New Jersey on April 17, 1937 and that she was the dependent of decedent and entitled to workman's compensation benefits under the laws of New Jersey.

 These proceedings were reviewed by a writ of certiorari granted by the New Jersey Supreme Court on February 2, 1942, as a result of which, on August 6, 1942, judgment was reversed. In so deciding, the court held that the contract of employment was not a New Jersey contract but subject to the laws of Louisiana. Having decided this aspect of the case, the court found it unnecessary to consider the respondent's status as common law wife of the decedent.

 After the ruling by the Commissioner in the New Jersey Workman's compensation proceedings, plaintiff moved for a summary judgment in this case but that was denied on August 21, 1942, following the reversal of the judgment of the latter by the New Jersey Supreme Court.

 The trial of the case without a jury followed. Arguments have been submitted and the case is before me for decision.

 Since it appears that the plaintiff has lost her suit for workman's compensation under the New Jersey law, she is relegated to her remedy under the Session Acts of the State of Louisiana of 1914, Act No. 20, as amended to and including July 31, 1940.

 At a pre-trial conference on December 10, 1941, it was agreed among other things that the decedent, Franzen, was engaged in employment in Louisiana that brought him within the purview of the said laws of the State of Louisiana. It was also agreed that the rate of wages paid to decedent was $44 per week at the time of his death.

 Common law marriages cannot be contracted under the laws of Louisiana. The law of that state recognizes only such marriages as are contracted and solemnized according to the rules which it prescribes. See Civil Code of Louisiana, Articles 86, 87, 88, 90, 117 and 118.

 The question in this case, therefore, is whether the plaintiff contracted a valid common law marriage to the decedent in New Jersey.

 Prior to 1919 plaintiff went to live in the small town of Fairview, near Camden, New Jersey. She had been married to a man named George Fisher in 1916, but this marriage was unsuccessful and by about the year 1919 she was separated from her husband and ultimately this marriage was dissolved by divorce in the year 1935.

 Some time after the year 1919 she took up housekeeping for a man named Irving Wendell and lived in his house until he died in the year 1933. Alexander L. Gordon also lived in the house with Wendell and plaintiff. At one time he lived with the parents of George Franzen, the decedent. After Wendell's death plaintiff moved to another house at 2866 Constitution Road, in the same town, and Mr. Gordon boarded with her at this address.

 The defendant succeeded in showing beyond any doubt that the plaintiff was for years known as Mrs. Reba Wendell in the community of Fairview. She was extremely reticent about admitting this at the trial, but the proof that she responded to that name over a long period of years and after the death of Mr. Wendell in 1933 was overwhelming.

 About 1934 the decedent, George Franzen, began paying attention to the plaintiff. He courted her at 2866 Constitution Road in Fairview for about three years, until April, 1937. He was then employed by the defendant at Deepwater in New Jersey. According to the plaintiff, they had planned marriage during the year 1937 but no definite date had been fixed for their wedding.

 On Saturday, April 17, 1937, according to the plaintiff, George Franzen called upon her and informed her that his employment in New Jersey was about to cease but that he was offered work at his trade in a plant of the defendant under construction at Baton Rouge, Louisiana. The afternoon or early evening of that day plaintiff and decedent went shopping for some necessary articles of clothing for his trip to Louisiana. He stayed the evening with plaintiff and finally announced that he wanted plaintiff to marry him or he would be disinclined to make the trip to Louisiana and work there. If she married him he promised to send for her to join him as soon as he was settled there. Plaintiff objected that a mattiage could not be performed at that hour. She stated that thereupon decedent said, "We'll make our own vows." She acquiesced in the arrangement, he repeated words to the effect that he was taking her for his wife, and she, that she accepted him as her husband. He produced a ring from his pocket and put it upon her finger. He stayed with her that night.

 Mr. Gordon had been with the couple for part of the time on Saturday. In fact he had driven them to the stores where they had done the shopping. In the evening he retired early and left them talking. After rising on the following morning he found plaintiff and decedent preparing breakfast and decedent accosted him with an invitation to "Meet the wife", referring to plaintiff. Later that day all three went to a restaurant at Camden for a dinner in the nature of a wedding celebration. After dinner the decedent discussed the prospect of plaintiff soon joining him at Baton Rouge and Mr. Gordon's continued use of the house was arranged. Plaintiff did not own the house and for some reason it seems to have been rented in the name of Mr. Gordon. Decedent agreed to pay part of the rental and running expenses and Mr. Gordon was to keep the house in order pending decedent's and plaintiff's return.

 Decedent spent Sunday night with plaintiff at the Constitution Road house. Up to this time he had lived with his parents in the same town but at some distance from the house of the plaintiff.

 Early Monday morning decedent left plaintiff to get his belongings for use in Louisiana and returned to the Constitution Road house to pick up the accessories purchased by plaintiff and decedent and to bid plaintiff goodbye. Plaintiff said that decedent told her that he would arrange to send her money so that she could go to Baton Rouge and live with him down there. On his return to the house of plaintiff that morning he was accompanied by a fellow worker named Clancy with whom he was to drive to Baton Rouge. Clancy had picked him up at his mother's house. Clancy ...

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