such presumption and to place upon the second wife the obligation of proving that by valid divorce proceedings Hiram Plumsteel was free to contract a valid second marriage.

We are not, however, content to decide so important a proposition upon precedent alone. This court is not bound by the decisions of the courts of other states, or even by the former decisions of this court, unless the declarations of principles in such former adjudicated cases commend themselves by their essential soundness. There is, of course, a presumption that any marriage which has been solemnized in accordance with the laws of the jurisdiction where the ceremony is performed is valid. There is also a presumption that any marriage which has been properly and legally solemnized, and the status of the parties which has been thereby fixed and determined, shall continue until terminated by death, or by the decree of some court of competent jurisdiction having both parties before it by due process of law. If both of these presumptions could be indulged without either doing any harm to the other, it would be the best solution of the problem, but unfortunately, in order for one presumption to be indulged, it is necessary in many instances that the other must be violated. It has been said that to indulge the presumption of the continued existence of the former marriage would place upon the second wife the burden of proving a negative, to wit, that the first wife was not dead, or that she was not divorced. This view entirely loses sight of the fact that to indulge the presumption of the validity of the second marriage places upon the first wife the burden of proving a negative, to wit, that no decree of divorce has been awarded.

It would seem that the latter negative would be the more difficult to prove. This record shows that Plumsteel traveled all over the world and divorce proceedings are recognized in every state in the Union except South Carolina and in many of them constructive service is rather loosely safeguarded. In order for the first wife to affirmatively disprove the existence of a divorce she would have to investigate the court records in all of the counties of 44 states of the Union. But let us suppose that Plumsteel had obtained a decree of divorce in any state other than New York, the last domicile of the marriage having been in New York state, a divorce obtained by constructive service in any other state would have no validity. This has been decided in the case of Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525. 50 L. Ed. 867, 5 Ann. Cas. 1. In that case it was held in a five to four decision that

"The mere domicile within the state of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the other states by virtue of the full faith and credit clause of the federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action."

The domicile of the marriage was in New York state. The husband obtained a residence in Connecticut and obtained a decree of divorce upon constructive service, and thereafter remarried in the state of Connecticut and children were born of such marriage. Thereafter the husband, while sojourning in the state of New York, was served with summons by the wife in a suit for alimony, and it was held that the Connecticut divorce proceedings had no force or validity against the wife of the New York marriage. This case necessarily eliminates the possibility of any valid divorce decree outside of the state of New York. In this case both wives appear to have been worthy women. Both were grossly imposed upon. It would seem to be a more reasonable doctrine to require the burden o fproof to be placed upon the second wife, because it was not possible for the first wife to have followed her recreant husband all over the world in order to prevent another marriage of an unlawful nature, while it was within the power

of the second wife to have made inquiry or to have insisted upon some information concerning Plumsteel's antecedents. It seems much better to insist that a little ordinary business prudence should enter into a prospective marriage, and that, when a woman does not insist upon knowing something about the past life of the prospective bridegroom, it is more reasonable that she should take the consequences of her imprudence than that the consequences should be visited upon a perfectly innocent lawful wife, who had no knowledge and no means of knowledge that the second marriage was about to

occur.

We are not entirely without authority on this subject in Ohio. In the case of Evans v. Reynolds, 32 Ohio St. 163, it was held that a marriage solemnized in due form is presumed to be lawful until some enactment which annuls it is produced and proved by those who deny its validity. In that case the validity of the former marriage was brought in question, there being no question as to the fact of the marriage, and yet it was held that the admission of the fact of the marriage placed the burden upon the opposing party to prove its invalidity. While the facts in that case are not by any means parallel to the facts in the case at bar, surely the principle upon which that case was decided is applicable to the case at bar. If, as that case holds, the validity of a first marriage will be presumed, surely a fortiori the presumption of the continuance of the marriage relation should be indulged in favor of a wife who is conceded to have been lawfully married. That being the only case ever decided by this court which seems to throw any light upon the question, the views we are taking of the instant case must be held to be supported by the former declarations of this court.

The violations of marriage contracts have become so common, and obtainnig a decree of divorce has become so easy and frequent, that some courts have evidently mistaken certain loose notions on the subject for sound legal principles. To follow the trend of the numerous authorities in other states would only further augment the much-discussed divorce evil. One of the chief causes of the frequency of divorce is the fact that marriages are contracted in haste, and it does not seem consonant with modern conditions on that subject to encourage marriage between comparative strangers without any inquiry by either into the past life or antecedents of the other. We therefore approve the conclusion of the Court of Appeals in this case that the first wife is the lawful dependent in this case.

[4] Finally, it must be determined whether the first wife is a dependent within the true meaning of section 1465-82, and whether an award can be made to her estate, she having died before the cause was heard upon appeal in the court of common pleas. Our attention has been called to many authorities, English and American, as to what constitutes a dependent. It will be found, however, that the statutory provisions differ in all jurisdictions, and it will be further found that there is not as much uniformity as might be desired in the decisions where the statutory provisions are substantially the same. We think the question of dependency can be determined by examination of the provisions of the statute without reference to other adjudicated cases.

The section above referred to provides that—

"The following persons shall be presumed to be wholly dependent for support upon a deceased employee :

"(A) A wife upon a husband with whom she lives at the time of his death."

Clearly Sarah Plumsteel was not living with her husband at the time of his death, nor for fourteen years prior thereto. She had been receiving no support from him for four or five years. It must be conceded therefore that she is not properly classed as a person wholly dependent. The same section further provides.

"In all other cases, the question of dependency, in whole or in part,

1

shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband, or widow, lineal descendant, ancestor or brother or sister."

We have already found that Sarah Plumsteel was the widow, and must therefore have been a member of his family, even though he had forsaken her many years before, and even though he had neglected the natural and legal obligations he owed her. Under such circumstances it is urged that she should not be adjudged a dependent unless she was in fact receiving support from him. Upon no principle of law, reason, or common sense can such a position be maintained. Dependency rests upon an obligation of support and not upon the question as to whether that obligation is being discharged. To hold that a recreant husband can relieve himself of such an obligation by his mere defiant refusal to discharge the obligation would be to permit a person to take advantage of his own wrongdoing. It is not a question of how well he fulfilled his legal obligations, or how faithful he was in fact in the performance of those promises of support which are a part of the marriage contract and which are supplemented by elaborate statutory provisions clearly defining his duty to support and maintain his wife in so far as he is able to do so; the question is: Was there a duty on his part and ha sanything occurred to relieve him of that duty?

The marriage contract, supplemented by statutory enactments, clearly created the duty, and he cannot relieve himself therefrom by hsi own acts any more than a man can life himself clear of the ground by tugging at his boot straps. He can only be relieved by the decree of some court of competent jurisdiction after process duly served upon the other party to the contract.

This conclusion is in harmony with the spirit of the case of Industrial Commission v. Drake, 103 Ohio St. 628, 134 N. E. 465, recently decided by this court, in which a son was held to be a partial dependent of his father, who was not in fact discharging his obligation of support in a lawful way. Under the language of section 1465-82, General Code, Sarah Plumsteel must be held to have been a partial dependent, and therefore entitled to have the question of the value of her dependency determined in accordance with the facts of this particular case existing at the time of the death of Hiram Plumsteel. Inasmuch as she has deceased before that matter has been adjudicated, it becomes a very simple proposition. Under paragraph 3 of section 1465-82 she should be awarded two-thirds of his average weekly wages, and it should continue from the time of his death to the time of her death. This is clearly in accordance with the facts of this case, and no other conclusion could be in accordance with the facts, because it appears that all further compensation has already been paid.

It is urged, however, that no award can be made in this case in favor of the estate, because when this matter comes on for determination in the court of common pleas it will appear that there are no dependents at the time of the hearing, and we are cited to the case of Doyle, Adm'x, v. B. & O. R. Co., 81 Ohio St. 184, 90 N. E. 165, 135 Am. St. Rep. 775, in support of that contention. That case, however, was prosecuted under favor of section 10770, General Code, the provisions of which are very different from the provisions of the Industrial Commission Act. That section merely creates a cause of action, and the right is not complete until a judgment is rendered in favor of the claimant. Under section 1465-82 the cause "shall be determined in accordance with the facts in each particular case existing at the time of the injury." The right of Sarah Plumsteel was therefore complete at the time of the injury to Hiram Plumsteel resulting in his death. She was entitled to an award at that time, and if her claim had been promptly presented it would have been the duty of the Commission to make the award, and under the principles we have declared herein it would also have been the duty of the Commission to have revoked the award at the time of her death.

The judgment of this court is therefore that the judgment of the Court of Appeals be affirmed, and this cause be remanded to the court of common pleas of Franklin county for further proceedings in accordance with this opinion.

Judgment affirmed.

Johnson, Hough, Wanamaker, Jones, and Matthias, JJ., concur.

HOGAN ET AL. v. STATE INDUSTRIAL COMMISSION ET AL.

(No. 12479.)

(Supreme Court of Oklahoma.

May 16, 1922.)

207 Pacific Reporter, 303.

(Syllabus by the Court.)

1. MASTER AND SERVANT-DECISION OF INDUSTRIAL COMMISSION WITHOUT EVIDENCE REVIEWABLE UNDER COMPENSATION LAW.

By the provisions of section 10 of article 2 of the Workmen's Compensation Law, as amended by section 10, c. 14, Laws 1919, the decision of the State Industrial Commission is made final as to all questions of fact; but this is so only when there is some evidence to support such decision, and, where there is absolutely no evidence to support such finding and decision, the same may be reviewed as a matter of law.

(For other cases, see Insurance, Dec. Dig. § 417[7].)

2. MASTER AND SERVANT — BURDEN ON COMPENSATION CLAIMANT TO SHOW INJURY IN EMPLOYMENT.

In a proceeding before the State Industrial Commission, seeking compensation for an alleged injury, the burden of proof is upon the claimant to show by the evidence that the injury complained of was accidental, and arose out of and in the course of his employment.

(For other cases, see Insurance, Dec. Dig. § 403.)

3. MASTER AND SERVANT-COMPENSATION AWARD HELD UNWARRANTED.

Evidence examined, and held, that there is no evidence to support the

award.

(For other cases, see Insurance, Dec. Dig. § 361.)

(Additional Syllabus by Editorial Staff.)

4. MASTER AND SERVANT

COMPENSATION PAYABLE

ONLY WHERE CLAIMANT IS AN EMPLOYEE.

Compensation is payable only when the claimant is an employee within Laws 1915, c. 246, art. 1, § 2, as amended by Laws 1919, c. 14, § 1. (For other cases, see Insurance, Dec. Dig. § 361.)

Appeal from State Industrial Commission.

Application by James Otto Cherry for an award under the Workmen's Compensation Act which was opposed by T. R. Hogan, transacting business as the Wilburton Gin Company, employer, and the United States Fidelity & Guaranty Company, insurer from an award by the Industrial Commission, the employer and insurer appeal. Award vacated, and cause

reversed and remanded to the Industrial Commission, with direction to dismiss the claim.

Ross & Thurman, of Oklahoma City, for appellants.

S. P. Freeling, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for respondent State Industrial Commission.

G. B. Mitchell, of Wilburton, for respondent Cherry.

JOHNSON, J. The petitioners, who were the employer and insurance carrier, respectively, have filed their petitions in this court joining the State Industrial Commission and James Ott Cherry, who was the claimant, as respondents, to review an order and award made by the State Industrial Commission in a proceeding before it designated as No. 18641, wherein James Otto Cherry was claimant, T. R. Hogan doing business as Wilburton Gin Company, was respondent, and United States Fidelity & Guaranty Company was insurance carrier, which order was made on June 25, 1921, and was amended by an order made on July 6, 1921, required the respondent and insurance carrier to pay to the claimant compensation at the rate of $8 per week for 250 weeks as for the loss of an arm, together with all medical bills. For convenience, reference will be made herein to the parties as they were named in the proceeding before the Industrial Commission.

Counsel for the respective parties agree that there is but one question here for determination; that is, whether the relation of master and servant existed between the applicant and T. R. Hogan, transacting business as Wilburton Gin Company, or was James Otto Cherry an employee of the respondent T. R. Hogan.

The undisputed facts, in substance, are that, on December 15, 1919, the respondent, T. R. Hogan, was operating a cotton gin at Wilburton, Okl., under the name of Wilburton Gin Company, and on that day had in his employ a superintendent and a ginner, the latter being named Green. On that day the claimant, James Otto Cherry, hauled a load of cotton to the gin, arriving about 10 o'clock a. m., and, finding a number of wagons to be unloaded ahead of him, he waited there until about 1:30 p. m., and was at that time standing in the doorway at the gin room which contained four gin stands in a row, running east and west. The west gin stand became clogged, and Green, the ginner, went to it, raised the breast, and asked Cherry, who was standing near by to help him hold it. Thereafter the east gin became clogged and Green went to that gin stand. The additional weight of the breast being thrown on Cherry caused his hand and arm to be pulled down into the saws, which so tore his hand and forearm that it was necessary to amputate his arm. Cherry had never worked around a cotton gin, and had never engaged in any other occupation than farming. Green had no authority from the respondent to employ additional help about the gin, and Cherry did not understand that Green, or any one else, intended to pay him for rendering the assistance requested by Green, and Cherry did not expect pay for such assistance.

[1, 2, 4] Section 2 of article 1, chapter 246, Session Laws 1915, as amended by section 1, c. 14, of the Session Laws of 1919, provides that compensation provided for in the act shall be payable for injuries sustained by employees. Subdivision 3 of section 3, art. 1, of the act provides that the term "employer" means persons, partnerships, associations, corporations, etc., employing workmen in hazardous employments. Subdivision 4 of the said section provides that "employee" means any person in the employment of any person, firm, etc., carrying on a business covered by the act. Subdivision 8 of said section provides that "wages" means the money rate at which the service is recompensed under the contract of hiring in force at the time of the accident.

It seems to us that it obviously follows from the above provisions of the Workmen's Compensation Law that compensation is payable only where