adverse evidence and to justify a finding that D.G. was the child of the deceased employee. B states that she thought, at the time of the divorce proceedings, that only a child born during wedlock could be considered a child of the parties. According to a brother of B, who with a sister of the deceased employee, G, was present at the baptismal ceremony (they were godfather and godmother of the child), the sister suggested that the deceased employee not be shown as the father to avoid any "reflection" on him. He later signed the church record showing that he was the father.

Accordingly, it is held that the evidence now of record justifies a finding that D.G. is the son of the deceased employee, G, and entitled to the benefits of the Act as his "child." (Cf. Zachmann v. Zachmann, 66 N.E. 256 (Ill. 1903); Dudley's Administrator v. Fidelity & Deposit Co., 240 S.W. 2d 76 (Ky. 1951).)

SECTION 1(a) OF THE RAILROAD RETIREMENT ACT AND SECTION 1(a) OF THE RAILROAD UNEMPLOYMENT INSURANCE ACTEMPLOYER STATUS

20 CFR 202.1

L-61-13

Service to transport company, wholly owned by railroad company, engaged exclusively in trucking service and in leasing motor vehicle trailers and tractors to shippers held not creditable for the purposes of the Railroad Retirement and Unemployment Insurance Acts.

The issue is whether a certain transport company, wholly owned by a railroad company, is an "employer" under the Railroad Retirement and the Railroad Unemployment Insurance Acts.

The evidence is that the transport company, wholly owned by the railroad company, is engaged in trucking service. It has its own executives, employees, and supervisory personnel, all of whom are employed by the transport company exclusively, and it maintains and operates its own equipment. The transport company performs certain substituted motor-for-rail service under certificates issued by the Interstate Commerce Commission, which certificates were held by the railroad company before August 14, 1959. The transport company performs pickup and delivery service for shippers in various cities, for the United States Post Office, and for the transport company's parent company. The transport company also leases motor vehicle trailers to shippers, providing protective and maintenance service where required, and leases tractors to shippers in connection with "piggyback" services under Plan III, which tractors are operated by the transport company's own employees in the performance of such services.

Section 1(a) of the Railroad Retirement Act provides as follows:

The term "employer" means any carrier (as defined in subsection (m) of this section), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any service (except trucking service, casual service, and the casual operation of equipment or facilities) in connection with the transportation of passengers or property by railroad (Emphasis supplied.)

Section 1(a) of the Railroad Unemployment Insurance Act contains an identical definition of the term "employer." Thus, a company which is controlled

by or under common control with a railroad subject to part I of the Interstate Commerce Act, is not to be considered an "employer" under the Railroad Retirement Act and the Railroad Unemployment Insurance Act by virtue of that fact if the only service performed by it in connection with railroad transportation is trucking service. Such appears to be the case here. The leasing of tractors and trailers to shippers in connection with "piggyback" service cannot properly be considered a service in connection with railroad service, since it directly and immediately concerns not the railroad portion of the joint movement but rather the trucking portion. The statement by the transport company that it "provides protective and maintenance service where required (i.e., refrigerated or heated trailers)" would appear to mean merely that some of the company's trailers are heated or refrigerated by mechanical means, and does not suggest that actual services are performed in this connection during the railroad portion of the movement. Accordingly, it is held, the transport company is not an "employer" under the Railroad Retirement Act or the Railroad Unemployment Insurance Act. SECTION 5(a) OF THE RAILROAD RETIREMENT ACT-REINSTATEMENT OF WIDOW'S INSURANCE ANNUITY

20 CFR 237.406

L-61-23

A widow's insurance annuity which was terminated upon her remarriage may be reinstated by reason of a decree of annulment in Texas of such remarriage.

The issue is whether a widow's insurance annuity which was terminated upon B's remarriage may be reinstated after such remarriage was annulled. Section 5(a) of the Railroad Retirement Act provides in pertinent part as follows:

A widow *

shall be entitled during the remainder of her * * * life or, if she ✶ ✶ * remarries, then until remarriage to an annuity for each month equal to such employee's basic amount:

Regulations of the Railroad Retirement Board (20 CFR 237.406) provide

that:

(a) Subject to the provisions of § 237.411 an individual is entitled to a widow's insurance annuity if she: *

(4) Has not remarried.

The evidence is that on September 23, 1960, the employee's widow, B, informed the Board that she had remarried on September 2, 1960, and submitted proof of such marriage to C. On October 21, 1960, G and G, attorneys for the widow, submitted a certified copy of a judgment issued by a Texas district court which annulled B's marriage to C. It was requested that B's previous rights under the Railroad Retirement Act be restored to her. The court's decree was that the marriage of B, the plaintiff in the annulment action, to C, was "hereby dissolved, annulled, set aside and held for naught", the court finding that B was at the time of the marriage ceremony "mentally incapacitated from entering into a marriage contract" and that because of this circumstance a marriage contract was not entered into, so that there was no marriage. The court did not expressly state that the decree was to operate

retroactively, that the marriage was void ab initio, but used language of equivalent meaning. Moreover, there is nothing in the statutes of the State of Texas, or in the decisions of its courts, to suggest that a decree of annulment ever applies otherwise. The general rule, of course, observed in the great majority of States, is that a decree of annulment annuls the marriage ab initio (American Jurisprudence, Vol. 35, Marriage, § 83). And although no express statement to that effect in the Texas decisions was found, a Texas court has noted, in pointing out the difference between annulment and divorce, that in annulment, "the marriage is declared to have been voidable or void from the beginning," whereas in divorce "the marriage, valid from the beginning, is declared terminated for the subsequent misconduct of one of the parties" (McDade v. McDade, 16 S.W. 2d 304 (Tex. Div. App. 1929)). It is to be noted, also, that the decree here did not provide for payment of alimony, nor do the statutes of Texas (or Arizona, where the employee died) authorize alimony where a marriage is annulled.

Therefore, the court's decree is to be understood as declaring that from the date of the decree the marriage was to be taken as void ab initio, although before the decree was entered by the court the marriage was voidable under the law of Texas (Simpson v. Neely, 221 S.W. 2d 303 (Tex. Civ. App. 1949)); and, of course, even if it is assumed that, for purposes of the Railroad Retirement Act, the law to be applied is the law of the State of Arizona, where the employee died, the courts of that State would undoubtedly give due faith and credit to the annulment of the Texas court.

Accordingly, it is held, B is again to be regarded as not remarried, and entitled to reinstatement of her annuity as the widow of the employee, beginning with the month of October 1960 (cf. Nott v. Flemming 272 F. 2d 380 (C.A. 2, 1959)).

SECTION 5(1) (1) OF THE RAILROAD RETIREMENT ACT-VALIDITY OF COMMON-LAW MARRIAGE

20 CFR 237.303, 237.406

L-61-32

Marriage effected under common-law principles in Pennsylvania held valid where there is no impediment on either party and there is an agreement of marriage in praesenti.

The issue is whether a valid marriage was created under common-law principles.

Section 5(1)(1) of the Railroad Retirement Act provides:

In determining for purposes of this section [which provides benefits for survivors of employees] and subsection (f) of section 2 whether an applicant is the wife, husband, widow, widower, child, or parent of an employee as claimed, the rules set forth in section 216(h) (1) of the Social Security Act, as in effect prior to 1957, shall be applied.

Section 216(h) (1) of the Social Security Act as in effect before 1957 provides:

In determining whether an applicant is the wife, husband, widow, widower, child, or parent of a fully insured or currently insured individual for purposes of this title, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in

which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, husband, widow, widower, child, or parent shall be deemed such.

The employee was domiciled in Pennsylvania at the time of his death; therefore, under the provisions above quoted the laws of that State must be applied.

The evidence is that the claimant, B, married the employee, A, by ceremony on May 10, 1944, at Cumberland, Md., and that this marriage was dissolved by divorce, the Decree of Divorce being entered in the records of Huntingdon County, Pa., on March 9, 1959. It appears, however, that A and B resumed living together as man and wife on July 6, 1959, and continued in that relationship until A's death in May 1960. In support of the latter claim B has shown that various business matters were entered into by A and B as man and wife; that leases were executed by them as well, bank accounts established, loans procured, and insurance policies contracted for showing B as "wife." The claimant's statements with reference to their cohabitation and holding out to the public generally as husband and wife have been corroborated by statements prepared by two brothers of A. B has stated, however, in answer to the question as to what agreement was made at the time they resumed living together, as follows: "I thought I never had been divorced because he told me the divorce had never been completed. I thought I was still his wife. He stated he wanted to make a home for us and our children."

While Pennsylanvia recognizes the validity of common-law marriages, the courts of that State have required very strict proof of a new marriage agreement in praesenti subsequent to the removal of a marriage impediment (McLaughlin's Estate, 172 A. 107 (Pa. 1934); Hughes v. Freely, 144 A. 277 (Pa. 1928)); this proof, however, is not limited to proof of specific words of agreement. In In re Thewlis' Estate, 66 A. 519 (Pa. 1907), it was held that the presumption of innocence will operate in favor of a finding that a valid marriage exists in a case where the parties went through a formal marriage ceremony and continued to live together after the removal of an impediment of which the woman was not aware. The court emphasized the point that an assertion by acts and conduct is in law "as efficacious as words for establishing a contract by implication" and it appears from the court's opinion that the court derived the existence of a new agreement from such acts and conduct, rather than the prior ceremony. Also in Craddock's Case, 37 N.E. 2d 508 (Mass. 1941), the Massachusetts Supreme Court, in holding valid an alleged common-law marriage entered into in Pennsylvania and therefore subject to the Pennsylvania law, relied upon the foregoing quotation from the opinion in In re Thewlis' Estate, and specifically found: “It follows, that the contention of the plaintiff K that it must be concluded that no marriage existed between A and the deceased because of the absence of express words of mutual assent after the impediment was removed, cannot be sustained."

In the instant case there appears to have been no impediment to marriage between A and B and it is also established that they lived together and held

each other out as husband and wife, from July 1959 until the employee's death. The only question can be whether a new agreement was entered into in view of B's statement that she did not know that the divorce from A was granted and that therefore she did not think it necessary to have a new marriage. The evidence, however, is sufficient to warrant finding the existence of the necessary agreement in praesenti in the conduct of the principals here and, accordingly, it is held that the claimant B may be found to be the widow of A for purposes of the Act.

SECTION 2(g) OF THE RAILROAD RETIREMENT ACT-VALIDITY OF MEXICAN DIVORCE—APPLICATION OF CONFLICTS LAW OF THE VARIOUS STATES

20 CFR 232

L-61-60

The spouse's annuity is not to be terminated because of a Mexican divorce obtained by the old-age annuitant under the evidence as to the jurisdictional basis of the Mexican decree in this particular case.

Section 2(g) of the Railroad Retirement Act provides that a spouse's annuity shall cease at the end of the month preceding the month in which the spouse and the old-age annuitant are "absolutely divorced." An inquiry has been received from an attorney as to whether the spouse's annuity of his client, a resident of Arkansas, is to be terminated because her husband, R, obtained a divorce from her in Mexico, without her entering an appearance. In determining the validity of a Mexican divorce, the Board must apply the conflicts law which would be applied by the courts of the State of the oldage annuitant's domicile, in this case apparently the State of Arkansas.

The Arkansas decisions are not clear as to when the Arkansas courts will regard a foreign decree of divorce as having a sufficient jurisdictional basis. It was decided in Bethune v. Bethune, 94 S. W. 2d 1043 (Ark. 1936) that a Mexican divorce awarded to a husband who was in Mexico only 9 days, and who appeared in court only once, and gave no testimony, the decree having been awarded upon grounds which would not have been grounds for divorce in the State of Arkansas where the wife was domiciled and where the parties had their matrimonial domicile during the time of their cohabitation, was not entitled to recognition in the courts of Arkansas. And in Wheat v. Wheat, 318 S. W. 2d 793 (Ark. 1958), the court expressed agreement with the decision in Jennings v. Jennings, 36 So. 2d 236 (Ala. 1948) where the court held invalid a statute permitting nonresident couples to confer jurisdiction by consent and thus obtain a divorce in Alabama with no residence there at all. But the fact that in the Wheat decision, the Arkansas court upheld the amendment by the Arkansas legislature to its divorce law, by which it was in effect enacted that the requirement of domicile for purposes of an Arkansas divorce is satisfied by mere residence, as distinguished from domicile in the usual legal sense, suggests that Arkansas courts may be more ready and willing than the courts of some other states to recognize the validity of divorce decrees of courts of foreign countries awarded upon the basis of limited periods of residence and/or domicile by one of the parties.

In this case R apparently went down to Mexico personally, but there was no change in the Board's record of his address. His letter dated February 6, 1961, transmitting a copy of the Mexican decree, and stating that Mrs. R is