151 S.W. 80 (Mo. 1912), Nelson v. Jones

Citation:151 S.W. 80, 245 Mo. 579
Opinion Judge:LAMM, J.
Party Name:ADDIE NELSON and DAVE NELSON v. TALITHA JONES, LIZZIE C. CHISM et al., Appellants
Attorney:Ward & Collins for appellants. Arthur L. Oliver for respondents.
Judge Panel:LAMM, J. Graves and Woodson, JJ., dissent.
Case Date:November 14, 1912
Court:Supreme Court of Missouri
 
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Page 80

151 S.W. 80 (Mo. 1912)

245 Mo. 579

ADDIE NELSON and DAVE NELSON

v.

TALITHA JONES, LIZZIE C. CHISM et al., Appellants

Supreme Court of Missouri

November 14, 1912

Appeal from Pemiscot Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed and remanded (with directions).

Ward & Collins for appellants.

(1) The court erred in the admissibility and rejection of testimony. Thompson v. Irish, 99 Mo. 160; Coble v. McDaniels, 33 Mo. 363; O'Neil v. Crain, 67 Mo. 250. (2) Regardless of whether or not John Jones was divorced from his first wife, still his marriage to the second wife, whether it be ceremonial or common law; his holding her out as his wife and cohabiting with her as such; his and her recognition of each other as man and wife; that relation continuing until his death, these children being born of such relation are legitimate under the law and inherited from their father. Sec. 342, R. S. 1909; Lincecum v. Lincecum, 3 Mo. 441; Dyer v. Brannock, 66 Mo. 391; Pratt v. Pratt, 5 Mo.App. 539; Johnson v. Johnson, 30 Mo. 72; Buchanan v. Harvey, 35 Mo. 281; Green v. Green, 126 Mo. 17. There was a ceremonial marriage, but whether or not there was a ceremonial marriage, there was beyond question a common law marriage which is good under this statute. Dyer v. Brannock, 66 Mo. 391; Cargile v. Wood, 63 Mo. 501; Bishop v. Investment Co., 229 Mo. 729; Plattner v. Plattner, 116 Mo.App. 405. (3) "Where parties have cohabited together and held themselves out as man and wife, and there are circumstances from which a present contract may be inferred, the law, out of charity and in favor of innocence and good morals, will presume marriage. The law in general presumes against vice and in favor of innocence and good morals, and on this ground holds acknowledgment, cohabitation and reputation presumptive evidence of marriage." Cargile v. Wood, 63 Mo. 501; Ashford v. Insurance Co., 80 Mo.App. 643; Plattner v. Plattner, 116 Mo.App. 412; Johnson v. Johnson, 30 Mo. 90. "And this presumption cannot be overthrown except by the most cogent proofs." Plattner v. Plattner, 116 Mo.App. 412. Plaintiff cannot recover in this case regardless of the statute making legitimate these children, because plaintiff failed to show that this marriage to the second wife was not legitimate. The burden of proof was upon the plaintiff, and it was not sufficient to show a former marriage and to show that the first wife was still living, for the presumption is that there was a divorce obtained, and the burden is upon the plaintiff to overcome this presumption. Johnson v. Railroad, 203 Mo. 401; Klein v. Laudman, 29 Mo. 259; Waddingham v. Waddingham, 21 Mo.App. 609; Leech v. Bank, 99 Mo.App. 684; Winter v. Lodge, 96 Mo.App. 17; Maier v. Brock, 222 Mo. 82; Lincecum v. Lincecum, 3 Mo. 441. Every presumption of law is in favor of their legitimacy. Johnson v. Johnson, 30 Mo. 72; Boyer v. Dively, 58 Mo. 510.

Arthur L. Oliver for respondents.

(1) The ruling of the trial court upon the excerpts of testimony contained in appellants' brief was proper. (a) The testimony of John Jones as to whether he was married to Babe Harrington is clearly competent. Declarations of a deceased member of a family as to family history or pedigree are one of the oldest exceptions to the hearsay rule. 2 Wigmore on Evidence, Sec. 1480; 6 Ency. of Ev., 447; Flora v. Anderson, 75 F. 217; Topper v. Perry, 197 Mo. 544; Imboden v. Trust Co., 111 Mo.App. 235. (b) The admission of improper evidence before the court without a jury is harmless where there is sufficient proper evidence on which to base a decision. Young v. Hudson, 99 Mo. 102; Kleiman v. Geiselmann, 114 Mo. 437; Laumine v. Gehner, 110 Mo. 122; Crook v. Tull, 111 Mo. 283. (c) The testimony of J. M. Ballard was competent. As a licensed attorney in the state of Arkansas, he made an examination of all the records of the circuit and chancery courts in Mississippi county, Arkansas, where Jones and his wife Emma lived. It was shown by him that these records were voluminous, and he was then asked to show the absence of any record granting a divorce to either of these two lawfully married people. It was competent and proper to show the absence of such an entry in this manner. 2 Wigmore on Evidence, Secs. 1230, 1244; 10 Ency. Ev., 831; Canal Co. v. Kreybill, 17 Colo.App. 26. (2) The three cases cited by appellants deal, as here, with the relative rights of two sets of children by the same father but by different wives. In each case one or both of the parties to the second marriage acted in good faith. In the case at bar the trial court declared, as a matter of law, that if Babe Harrington acted in good faith in marrying John Jones, believing that he had been divorced, she and her children could inherit, but then found from the evidence that she did not so act, and this court is asked to weigh the testimony and set at naught the rule and precedent which are as old as the appellate courts. Green v. Green, 126 Mo. 17. The other cases cited by appellants throughout their brief -- Dyer v. Brannock; Johnson v. Johnson, Admr.; Buchanan v. Harvey, and Cargile v. Wood decide nothing in point in the case at bar, as they all deal with the rights of heirs by the first marriage under certain cohabital relations, and Indian customs amounting to marital contracts without ceremony. In these cited cases the heirs were not handicapped with parents knowingly committing bigamy and acts of adultery. (3) The court gave defendants the benefit of all presumptions of innocence and legitimacy by its declaration of law numbered 3. To overcome these presumptions the court properly declared, as a matter of law, that "the burden of proof is on plaintiffs to establish that the minor defendants are bastards and not capable of inheriting from their father, John Jones, and in establishing this fact said plaintiffs must show by the preponderance of the evidence that John Jones and his first wife were never divorced." Plaintiff met this burden of proof, and the court's finding of the facts is conclusive upon appellants. Keen v. Keen, 184 Mo. 366; Longuemere v. Busby, 56 Mo. 540; Turner v. Gibbs, 50 Mo. 556; Glade v. Ford, 131 Mo.App. 164; Collard v. Burch, 138 Mo.App. 94. Presumption of innocence and legitimacy, as enunciated in the cases of Platner v. Platner, Johnson v. Railroad, and Maeir v. Brock, does not apply, where proof positive, as in the case at bar, discloses no divorce annulling the marriage of John Jones and his wife Emma; and where one of the parties of the alleged second marriage had actual knowledge, and the other had at least presumptive knowledge, of the first marital relations still existing. The presumption of a valid second marriage in the case at bar, which the court below required plaintiff to rebut, was overcome by proof of a valid first marriage, by showing that the wife of that marriage lived true to her marital vows, and by proof that the first marriage had not been dissolved by divorce. This in law was sufficient. 8 Ency. Ev., 464; Cole v. Cole, 153 Ill. 585; Cozier v. Hinchey, 143 Mo. 203; Snuffer v. Korr, 197 Mo. 182. Nor is this evidence weakened by appellants' insistence that the first wife, after her separation from Jones, later married, because her second marriage occurred after Jones was killed. (4) There was no valid ceremonial or common marriage between John Jones and Babe Harrington. Under Secs. 8280 and 8281, R. S. 1909, certain marriages are declared void. Among those enumerated are marriages between white people and negroes, and where either party contracts marriage while having a former wife or husband living, without being divorced from the former. Under Secs. 4720 and 4722, R. S. 1909, certain marriages are declared bigamous...

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