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INLAND STEEL COMPANY v. BARCENA.
No. 16,908.
COURT OF APPEALS OF INDIANA
110 Ind. App. 551; 39 N.E.2d = 800; 1942=20 Ind. App. LEXIS 178

March 4, 1942, = FiledPRIOR HISTORY: [***1] From the = Industrial Board of Indiana.

Proceedings under=20 the Workmen's Compensation Act by Ruby Barcena, widow of Estanislao = Barcena,=20 deceased employee, against the Inland Steel Company, employer. From an = award=20 granting compensation and finding that claimant was the common-law wife = of=20 decedent, the employer appealed.

DISPOSITION:=20 Affirmed.

HEADNOTES: WORKMEN'S = COMPENSATION --=20 Appeal -- Award Contrary to Law -- Question of Legality of Common-Law = Marriage Presented. -- An assignment of errors on appeal from an = award of=20 the Industrial Board that the award is contrary to law is sufficient to = present=20 the question of legality of a common-law marriage of the deceased = employee with=20 the claimant for compensation.

WORKMEN'S=20 COMPENSATION -- Dependency -- Widows -- Common-Law Marriage -- = Evidence --=20 Deceased Employee a Mexican -- Marriage Statutes. -- In a proceeding = for=20 compensation under the Workmen's Compensation Act, wherein claimant, a = negro,=20 claimed to be the common-law wife and sole surviving dependent of a = deceased=20 employee, evidence that the employee was a "Mexican" and was whiter than = claimant was not sufficient to establish the fact that the deceased = employee was=20 a white person within the meaning of the statute prohibiting marriage of = persons=20 when one of the parties is a white person and the other possessed of = one-eighth=20 or more of negro blood, since all Mexicans are not white persons, and = some of=20 them are negroes.

EVIDENCE -- = Judicial Notice=20 -- Races of Inhabitants of United States. -- The Appellate Court = knows=20 judicially that the inhabitants of the United States consist of white = persons,=20 negroes, Indians, Japanese, Chinese, and a few persons from other = races.
WORKMEN'S COMPENSATION -- Dependency = -- Widows --=20 Common-Law Marriage -- Strong Presumption in Favor of Marriage = Status. -- In=20 a proceeding for compensation under the Workmen's Compensation Act by a = negro=20 woman who claimed to be the common-law wife and sole surviving dependent = of a=20 deceased employee who was a Mexican, there was a strong presumption in = favor of=20 the marriage status; and the law required the employer, who was = asserting the=20 illegality of the marriage, to take the burden of that issue and prove = it, even=20 though it involved the proving of a negative.
WORKMEN'S COMPENSATION -- Dependency -- Widows -- = Common-Law=20 Marriage -- Evidence -- False Statement in Application for Poor Relief = --=20 Effect. -- Where claimant in a proceeding for compensation under the = Workmen's Compensation Act claimed to be the common-law wife of a = deceased=20 employee, evidence that claimant had made a false statement in her = application=20 to obtain poor relief from the township trustee, saying in the = application that=20 she was not married and that she had no means of support, did not, under = the=20 rule of falsus in uno, falsus in omnibus, prevent an award based = on the=20 fact that she was the deceased employee's widow, where even if the rule = were=20 applied, and the evidence of claimant rejected, there was still an = abundance of=20 competent evidence from other witnesses to support the conclusions = reached by=20 the Industrial Board.

COUNSEL: = McAleer, Dorsey,=20 Travis & Young, of Hammond, for appellant.
Earl Heffner, of Indianapolis, and Robert Estill, of East = Chicago, for=20 appellee.

JUDGES: CURTIS, J.
OPINIONBY: CURTIS

OPINION:=20 [*552] [**800] CURTIS, J.--This was an action = instituted=20 by the appellee as plaintiff below against the appellant as defendant, = before=20 the Industrial Board of Indiana, for the adjustment of a claim for = compensation=20 under the Indiana Workmen's Compensation Act, wherein the appellee = claimed to be=20 the wife and sole surviving dependent of one Estanislao Barcena, = deceased. Under=20 Rule 10 of the Industrial Board, an answer in general denial was deemed = filed by=20 the appellant.

[*553] The cause = was set for=20 hearing before a single member of the board who entered an award in = favor of the=20 appellee, finding that she was the common-law wife of the said Barcena = and was=20 wholly [***2] dependent upon him at the time of his death. In = due=20 time the appellant filed an application for review before the full = board.=20 Thereafter, said board, by majority of its members, also entered an = award for=20 the appellee. It is from the said final award of the Industrial Board = that this=20 appeal has been prosecuted, the errors assigned being that the award of = the full=20 Industrial Board of Indiana is contrary to law. This assignment of error = is=20 sufficient to present the questions sought to be raised.
A part of the evidence was by a stipulation which we now set = out:
"It is stipulated and agreed by and between = the parties=20 hereto that the decedent, Estanislao Barcena, was employed by the = defendant,=20 Inland Steel Company, on and prior to the 29th day of May, 1940; that on = said=20 date he met with an accident while so employed, said accident arising = out of and=20 in the course of his employment by the defendant, resulting in injuries = to him=20 from which he died on May 30, 1940; that the defendant had knowledge of = the said=20 accident and resulting death of the [**801] said employe; = that his=20 average weekly wage was in excess of $ 30.00.

"It is=20 further stipulated and agreed by and between the = parties [***3] that=20 prior to the filing of a Form 10 on June 8, 1940, the parties disagreed = as to=20 compensation."

Among the findings of the = full board are=20 the following:

"Said full Industrial Board, = by a=20 majority of its members, further finds, that the said Ruby Barcena at = the time=20 of said accidental injury and subsequent death, was a common-law widow=20 [*554] wholly dependent on the said decedent Estanislao = Barcena at=20 the time of said death.

"The full = Industrial Board, by=20 a majority of its members, further finds, that the statutory funeral = allowance=20 has not been paid, and that one Jesus Barcena, a brother of said = decedent, paid=20 said funeral expenses."

We also quote a = part of the=20 award as follows:

"AWARD. It is therefore = considered,=20 ordered and adjudged by the Industrial Board of Indiana, by a majority = of its=20 members, that there is awarded plaintiff as against the defendant = compensation=20 at the rate of $ 16.50 per week, beginning May 30, 1940, continuing for = a period=20 of 300 weeks, or until modified or terminated in accordance with the = provisions=20 of the Workmen's Compensation Law of the State of Indiana."
The main contention of the appellant is that since the = evidence shows=20 conclusively that [***4] the appellee is a Negro, that she = could not=20 be the common-law widow of said Estanislao Barcena, who was a Mexican. = The=20 statute relied upon by the appellant is =A7 44-104, Burns' 1940 = Replacement, which=20 provides as follows:

"The following = marriages are=20 declared void: . . . Second: When one of the parties is a white person = and the=20 other possessed of one-eighth or more of negro blood."
The appellant's theory would be correct and the statute would = apply if=20 the evidence had shown that Estanislao Barcena was a white person, but = the=20 evidence is such that the board was warranted in concluding that such = proof was=20 not made. The evidence shows that he was a Mexican, and that he was = whiter than=20 the appellee. The Encyclopaedia Britannica, 11th Edition, Vol. 18, p. = 322,=20 states that approximately one-fifth of the inhabitants of Mexico are = whites,=20 approximately two-fifths [*555] Indians, and the balance = made up of=20 mixed bloods, Negroes, Japanese, and Chinese. It is further stated that: = "Under=20 the Constitution of 1824, all race distinctions are abolished, and these = diverse=20 ethnic elements are nominally free and equal." This court knows = judicially that=20 the inhabitants and citizens of the United [***5] States = consist of=20 white persons, Negroes, Indians, Japanese, and Chinese, and a few = persons from=20 other races. It is no more logical or consistent to say that all = Mexicans are=20 white persons than to say that all inhabitants and residents within the = United=20 States are white persons. We cannot adopt the contention of the = appellant that=20 the word "Mexican" should necessarily be construed to be a white person = from=20 that country.

Under our decisions, there = are strong=20 presumptions in favor of the marriage status. See Teter v. = Teter=20 (1885), 101 Ind. 129; Haddon v. Crawford (1912), 49 Ind. = App. 551,=20 97 N.E. 811; Franklin v. Lee (1902), 30 Ind. App. 31, 62 = N.E. 78;=20 Eddington v. Eddington (1938), 213 Ind. 347, 12 N.E.2d = 758;=20 Boulden v. McIntire (1889), 119 Ind. 574, 21 N.E. 445; = Ross=20 v. Red Cab Co. (1938), 105 Ind. App. 440, 446, 14 N.E.2d 333. The = case of=20 Ross v. Red Cab Co., supra, quoted with approval from=20 Boulden v. McIntire, supra, the following: "'As we have = seen from=20 the authorities cited, the law required the party who = asserts [***6] =20 the illegality of the marriage to take the burden of that issue and = prove it,=20 though it may involve the proving of a negative.'"

The=20 appellant also contends that the rule of falsus in uno, falsus in = omnibus=20 should be applied in this case, basing its contention upon the evidence = of the=20 appellee that she had made a false statement in her application to = obtain relief=20 from the township [*556] trustee, saying in said application = that=20 she was not married and that she had no means of support. Even if this = rule were=20 applied in this case, and the evidence of the appellee rejected, there = would=20 still be an abundance of competent evidence from other witnesses to = support the=20 conclusion reached by the Industrial Board that the appellee was the = common-law=20 widow of the deceased employee and that she was entitled to = compensation.
Finding no reversible error, the award is = affirmed.=20

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