For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the court was delivered by Mountain, J. Weintraub, C.J. (concurring). Francis, J. (concurring and dissenting in part). Weintraub and Francis, JJ., concur in result. Francis, J. dissents in part.
[59 NJ Page 191] Appellant, Mamie Dawson, filed a petition in the Division of Workmen's Compensation claiming dependency
benefits as a result of the death of her husband, Willie Dawson, on August 25, 1965. It is conceded that death occurred as the result of an "accident arising out of and in the course of his employment," N.J.S.A. 34:15-7, and that the only issue presented is whether the claimant is a "dependent" as that term is defined in N.J.S.A. 34:15-13(f). This statute enumerates as dependents various classes of persons standing in certain relationships to decedent. One such relationship is that of wife, as to whom dependency is conclusively presumed. Respondent has taken the position that the claimant did not enjoy the status of a wife at the time of Willie Dawson's death and that she cannot therefore claim benefits for which the statute makes provision.
On February 14, 1949, claimant and decedent were married ceremonially in Elkton, Maryland. Their application for a marriage license indicated that each was single and that neither had been previously married. Both were residing in New Jersey at the time and following their marriage they returned to this state, making their home in Newark. There they continued to reside together as husband and wife until decedent met his death some sixteen years later. No children were born of the marriage.
At the hearing before the Judge of Compensation, respondent produced as its witness, Nellie Mae Dawson. She testified that her maiden name had been Nellie Mae Respess; that she married Willie Dawson on September 20, 1942; that she had not previously been married and that when they applied for their marriage license, Willie had stated that he, also, had not been previously married. Two children were born of this union, both of whom are now adults and emancipated. Shortly after the marriage, Willie entered the military service, while Nellie Mae continued to reside in Atlanta, Georgia, where both parties had been living and where the marriage ceremony had been performed. Upon leaving military service, Willie returned to Georgia very briefly and then went to Newark ostensibly to buy a home. Thereafter
he made several trips to Atlanta but never stayed longer than a week, apparently returning to New Jersey after each visit. At about this point, he seems to have drifted out of Nellie Mae's life. She has since had two additional children by another man. According to her testimony, she never divorced Willie and to the best of her knowledge he never divorced her.
Respondent introduced in evidence the certificate with respect to the marriage of Willie and Nellie Mae in 1942. The application attached to the certificate disclosed no previous marriage by either party. There was also introduced a certificate of the Clerk of the Superior Court, Fulton County, Georgia, certifying that a search of the records of that office between July 1, 1940 and 1967 failed to disclose any suit for divorce filed in Fulton County between Willie Dawson and Nellie Mae Respess Dawson. Finally, there was admitted in evidence a certificate of the Clerk of the Superior Court of New Jersey, Chancery Division, revealing a similar dearth of any record of a divorce proceeding between the parties in this State during the appropriate period.
The Judge of Compensation entered a dependency award in favor of Mamie.
On appeal to the County Court the decision was reversed. The court noted the strong presumption that the latest of two or more ceremonial marriages having a common participant is valid. It pointed out that one attacking such a marriage must show by clear and convincing proof (1) that a prior marriage upon which he relies has not been terminated by death or divorce before the more recent marriage was celebrated, and (2) that at the time of the earlier marriage the parties thereto had been under no disability preventing their entering into that union. Such is clearly the law of this State. Booker v. James Spence Iron Foundry, 80 N.J. Super. 68, 73 (App. Div. 1963). The court determined that the evidence before it met the required
standards of proof as to each of these points and that accordingly the respondent should prevail.
The Appellate Division, on review, agreed with the County Court that the proofs were adequate to establish that the earlier marriage, that between Willie and Nellie Mae, had not been terminated by death or divorce; it disagreed, however, as to the second point mentioned above, and remanded the cause, while retaining jurisdiction, for further proofs and additional findings upon the issue as to whether either Willie or Nellie Mae had been under any disability at the time of their marriage in 1942.
At the hearing on remand, respondent placed in evidence certificates from officials of 111 counties in the State of Georgia*fn1 certifying in each case that their records revealed no marriage by either Willie Dawson or Nellie Mae Respess prior to the date of their marriage to one another in 1942. Petitioner, Mamie Dawson, introduced evidence to support an earlier common law marriage between Willie and a woman known only as Elizabeth. The County Court found this evidence inadequate to establish this earlier marriage and accepted respondent's proofs as being sufficient to negate any disability on the part of either Willie or Nellie Mae to marry one another in 1942. The case was returned to the Appellate Division which accepted these findings and affirmed the judgment for respondent. We granted certification. 57 N.J. 236 (1970).
In the Appellate Division, following remand, appellant sought leave to enlarge her proofs with respect to Willie's alleged common law marriage to Elizabeth. The court refused to permit this, noting that she had had a full opportunity to present evidence before the County Court at the two-day hearing after remand, and that "litigation must come to an end." We entirely concur.
This brings us to the meritorious issue which this case presents: Under the facts as they have been developed, should the judgment in favor of respondent be affirmed?
Initially it must be noted that petitioner, Mamie Dawson, entered upon her relationship with Willie in entire good faith. There is no evidence in the record to suggest that she had any suspicion, let alone knowledge, that Willie had ever been previously married. Her bona fides is unquestioned. In upholding awards under similar circumstances, courts in other states have placed strong reliance upon the good faith of a claimant when her legal relationship to the deceased employee has been questioned. Eason v. Alexander Shipyards, Inc., 47 So. 2d 114 (La. App. 1950); Perry v. Sun Coal Co., 183 Tenn. 141, 191 S.W. 2d 181 (1945); Nall v. Wakenva Coal Co., 236 Ky. 598, 33 S.W. 2d 631 (1930). In each case the reasonable and honest belief of the petitioner as to the validity of her marriage was strongly emphasized by the court as a reason for affirming the particular award. Conversely, a knowingly meretricious relationship has generally been held sufficient to defeat recovery. Insurance Company of North America v. Jewel, 118 Ga. App. 599, 164 S.E. 2d 846 (1968); Fields v. Hollowell & Hollowell, 238 N.C. 614, 78 S.E. 2d 740 (1953); McDonald v. Kelly Coal Co., 335 Mich. 325, 55 N.W. 2d 851 (1952); Day v. Day, 216 S.C. 334, 58 S.E. 2d 83 (1950); Hatfield Campbell-Creek Coal Co. v. Adams, 275 Ky. 744, 122 S.W. 2d 787 (1938).
Furthermore, from the time of their marriage in 1949 until her husband's death in 1965, Mamie and Willie lived together as husband and wife. For upwards of sixteen years this relationship continued, open and apparent. It was unquestioned and unchallenged during Willie's lifetime. The challenge came only after Willie's death and then not from the quarter from which it might have been expected -- the decedent's first wife, Nellie Mae -- but rather from ...