Rositer v. Bob Toomey Truck Leasing, Inc.

567 F.2d 938
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 16, 1977
DocketNo. 76-1561
StatusPublished
Cited by5 cases

This text of 567 F.2d 938 (Rositer v. Bob Toomey Truck Leasing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rositer v. Bob Toomey Truck Leasing, Inc., 567 F.2d 938 (10th Cir. 1977).

Opinions

BARRETT, Circuit Judge.

Bob Toomey Truck Leasing, Inc., et al., (Toomeys) appeal from judgments awarded against them in a wrongful death action following trial to a jury. Jurisdiction vests by reason of diversity.

Harold Leroy Rositer (Harold), decedent, was employed as an over-the-road truck driver with Lee Way Motor Freight. At the time of his death Harold was 53 years of age, earning $25,000 annually. The claims filed herein arose as the result of a highway accident on September 2, 1975 in which a Lee Way Motor Freight unit collided with one of Toomeys’ vehicles, causing Harold’s death. A detailed recitation of Harold’s matrimonial background is necessary in order to facilitate the proper alignment of the parties involved and to explain our disposition.

Harold married Arline Bennett (Arline) on October 21, 1959 in Akron, Ohio. Two children were born of this marriage, who are Sheree and Joel. Harold and Arline were divorced February 23, 1961. The divorce decree incorporated a separation agreement under which Harold was obligated to pay $12.50 per week child support, respectively, for Sheree and Joel. At trial it was established that at the time of his death Harold was $17,775 in arrears on the child support payments. It was also stipulated that under the child support formula incorporated in the divorce decree, Harold, had he survived, would have been obligated to tender additional payments of $4,250, i. e., the total sum required before Sheree and Joel had each reached their majority, at which time Harold’s support obligation ceased.

On August 19, 1961 Harold married Bertha Faye Rositer (Bertha) in Akron, Ohio. No children were born of this marriage. Harold and Bertha were separated in early 1963. Bertha did not file for a divorce, she was never served notice of any pending divorce proceedings, and she did not know if Harold had ever actually received a decree of divorce dissolving their marriage. Bertha testified that when she heard of Harold’s later marriage to Mary, she “assumed he had or would get a divorce” from her.

On January 26, 1967, Harold entered into a common law marriage with Mary Rositer in Oklahoma City. Harold and Mary lived together at Harold’s home as husband and wife until the time of his death. Harold told Mary at the time they met that he was “divorced.” A daughter, Patricia, was born of this marriage. It is uncontested that Harold, Mary and Patricia were living as a family unit at the time of his death.

On September 11, 1975, Mary filed this action as Harold’s surviving spouse and as administratrix of his estate. On February 20, 1976, Arline filed a petition in intervention as the mother and natural guardian of Sheree and Joel Rositer, Harold’s minor children. Sometime between Harold’s death and trial, Bertha also filed a petition in the District Court of Oklahoma County alleging that she was Harold’s surviving spouse. Bertha subsequently withdrew this claim following payment of $42,500 from Mary.

At trial, Mary presented evidence establishing her common-in-law marriage to Harold, the birth of their daughter, Patricia, their uninterrupted marriage and their life as a family unit until Harold’s death. Arline presented evidence of her prior marriage to Harold, the birth of their children, Sheree and Joel, the child support agreement incorporated within the divorce de[940]*940cree, Harold’s arrearages on the child support payments, and the balance due under the child support order. Toomeys presented evidence that Harold did not divorce Bertha and that, accordingly, he was not validly married to Mary at the time of his death. Toomeys objected to the introduction in evidence of Harold’s child support arrearages.

Following submission of the case for deliberation, the jury rendered its verdict as follows:

We, the Jury, find in favor of the plaintiffs and intervenor and against the defendants, . . . and fix the amount of their recovery as follows:
For Arline Rositer, Mother and Natural Guardian, Intervenor, $22,000 for the support of the children, Sheree and Joel Ros-iter;
For Mary M. Rositer, for the support and maintenance of Patricia Rositer during her minor $50,000;
For Mary M. Rositer as Administratrix of the Estate of Harold ... for the pain and suffering endured by the deceased prior to his death $30,000; and For Mary M. Rositer whom we find to be the surviving wife of the deceased $86,-000 for her loss of support, companionship and consortium.
[R., Vol. I, p. 56.]

Thereafter, on April 2, 1976, the trial court rendered a journal entry of judgment for the damages awarded by the jury. The trial court also awarded interest, as follows:

. interest at the rate of 6% from the 2nd day of September, 1975 to April 2nd, 1976, be awarded on each of the aforesaid amounts in behalf of plaintiff and the intervening plaintiff and interest at the rate of 10% be awarded on each of said amounts for plaintiff and intervening plaintiff from April 2,1976, until such judgment is paid .
[R„ Yol. I, p. 57.]'

On appeal, Toomeys contend that: (1) the trial court erred in failing to grant their motions to dismiss, for directed verdict, and for judgment notwithstanding the verdict on the claim of Mary that she was the surviving widow of Harold; (2) the trial court erred in admitting a journal entry showing that Harold was $17,775 in arrears on his child support payments; and (3) the provision of the Oklahoma statute providing for prejudgment interest is procedural and therefore does not apply in the federal courts in a diversity case.

I.

Toomeys contend that the trial court erred in failing to grant their motion to dismiss, motion for directed verdict, and motion for judgment notwithstanding the verdict on Mary’s claim that she was the surviving widow of Harold. Toomeys reason that the evidence conclusively shows that Mary could not have been legally married to Harold because he had not been divorced from his previous wife, Bertha. The trial court carefully instructed the jury on this matter:

With reference to the claim asserted by Mary Rositer as the alleged surviving wife of Harold Rositer, you are instructed that defendants contend she was not his lawful wife at the time of his death.
Where the same person has been married more than once, the law presumes that the last marriage is valid, and this presumption extends to and includes common law marriages. You are instructed that if Harold Rositer was capable of entering into a marriage with Mary, then it is not disputed that Harold, and Mary were married by operation of the common law. The issue before you is Harold’s capacity or incapacity to enter into a marriage with Mary.
A person who is married to one individual is conclusively presumed to be incapable of entering into a valid marriage with another individual until the prior marriage is dissolved by death or divorce.
The burden is upon the defendants to establish by a preponderance of the evidence that the marriage between Faye and Harold Rositer has not been dissolved by a decree of divorce.
[941]

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567 F.2d 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rositer-v-bob-toomey-truck-leasing-inc-ca10-1977.