Mattivi v. State Compensation Insurance Fund

127 P.2d 878, 109 Colo. 543, 1942 Colo. LEXIS 310

• Court: Supreme Court of Colorado
• Decided: June 29, 1942
• Docket: No. 15,159.
• Status: Published

Opinion

Mr. Justice Burke

delivered the opinion of the court.

This cause is here for the second time. State Fund v. Mattivi, 106 Colo. 461, 106 P. (2d) 463. Our former opinion should be read in connection with this. The sole question there was, and here is, Was plaintiff in error (hereinafter referred to as plaintiff) the common-law wife of the deceased? An order of the county court so holding was in evidence. Exclusive thereof the commis sion found the relationship did not exist, but bound by that order, as it believed itself in law to be, it found for her. We held the order admissible but not conclusive. Regardless thereof we found evidence to support an award either way and directed the cause remanded to the commission for a clear-cut finding on the fact. That procedure was followed, the same evidence introduced, and an award entered against plaintiff. That award was sustained by the district court and this writ is prosecuted to review its judgment. The assignments present the simple question of the sufficiency of the evidence.

In our former opinion we pronounced the identical evidence ample to support a holding of no common-law marriage. It is here insisted that pronouncement became the law of the case, citing 5 C.J.S., p. 1267, §1821. We need not determine the question. Instead we have elected to review that evidence and now hold it sufficient. Under the well-settled rule that if there be evidence to support an award it cannot be disturbed, the judgment is affirmed.

Mr. Chief Justice Young and Mr. Justice Knous concur.