Wade Church, of Phoenix, for petitioner.
H. S. McCluskey, of Phoenix (Robert E. Yount and Robert W. Pickrell, Phoenix, of counsel), for respondent Industrial Commission.
Stanford, Justice. Udall, C. J., and Prelps, De Concini, and La Prade, JJ., concurring.
This is a review by certiorari of an award of the Industrial Commission of Arizona denying petitioner Dorothy G. Hack death benefits for the demise of Clyde E. Hack. The decedent admittedly sustained fatal injuries arising out of and in the course of his employment on the 8th day of July, 1951. On said date and prior thereto decedent was employed by the Lazy 8 Flying Service, Inc., said employer being insured under a policy issued by the Industrial Commission of Arizona, respondent herein. Dorothy G. Hack, hereinafter referred to as petitioner, made claim for death benefits as the widow of the deceased. The respondent commission denied compensation on the ground that petitioner [74 Ariz. 306] was not in contemplation of law "his widow". By stipulation of counsel, this review is limited and confined to the Commission's finding No. 8 contained in the award of January 23, 1952, holding invalid the marriage purportedly existing between the decedent and the petitioner at the time of said injury.
Prior to the year, 1948, decedent Hack was married to one Shirley (Hack) Combs, and on the 7th day of August, 1948, there was filed in the Circuit Court of Marathon County, State of Wisconsin, in the case of Shirley Hack v. Clyde Hack, an interlocutory judgment and decree of divorce, containing the following provisions:
"It is adjudged that the bonds of matrimony heretofore existing between the plaintiff, Shirley Hack, and the defendant, Clyde Hack, be and the same are wholly dissolved, and the parties thereto forever freed from the obligations thereof, provided further that this judgment so far as it affects the status of the parties shall not be effective until the expiration of one (1) year from this date, excepting that it immediately bars the parties hereto from cohabiting and that it may be reviewed on appeal in said period, and excepting that in case either of the parties to this action shall die within said year this judgment shall take effect in every particular immediately before such death, and if an appeal be pending at the expiration of said year, then, subject to the foregoing exceptions, this judgment as to said status shall remain ineffective until said appeal be determined."
On August 14, 1948, five days after the Wisconsin judgment was filed, decedent and petitioner, who were then both residents of San Diego, California, obtained a marriage license from the clerk of the superior court of Yuma, Arizona; and on the same date, R. H. Lutes, justice of the peace at Yuma, Arizona, performed a marriage ceremony for the parties pursuant to the said license. Thereafter, they lived and cohabited together as husband and wife in California and Arizona until the death of deceased.
The question presented for our determination is whether the petitioner is the lawful widow of decedent?
Petitioner contends that her marriage to the decedent was valid in all respects under the statutory requirements of the state of Arizona concerning marriage ceremonies. In order to determine whether decedent had the capacity to enter into the marriage ceremony with petitioner, we must ...