29 Mo. 259 (Mo. 1860), Klein v. Laudman

Citation:29 Mo. 259
Opinion Judge:NAPTON, Judge.
Party Name:KLEIN & WIFE, Plaintiffs in Error, v. LAUDMAN & WIFE, Defendants in Error.
Attorney:Douglass & Hayden, for plaintiffs in error. J. A. & J. H. Hening, for defendants in error.
Court:Supreme Court of Missouri
 
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Page 259

29 Mo. 259 (Mo. 1860)

KLEIN & WIFE, Plaintiffs in Error,

v.

LAUDMAN & WIFE, Defendants in Error.

Supreme Court of Missouri.

January Term, 1860

1. Though there is a presumption of law that a fact continuous in its nature, such as marriage, continues after its existence is once shown, yet this presumption should not be permitted to overthrow the presumption of law in favor of innocence.

2. A. and B. as husband and wife sued C. in an action of slander for words spoken. They proved their marriage. Declarations made by the wife of B., to the effect that previous to her marriage to A. she had been married in Germany to another man, were admitted in evidence in favor of C. to show the marriage with A. invalid. Held, that the law, under such circumstances, would presume in favor of the innocence of B. in contracting the second marriage, that the first marriage had been dissolved by death or decree of divorce.

3. Quere, whether the declarations of the wife would be admissible in such case to prove the former marriage.

Error to Cooper Court of Common Pleas.

This was an action by Leonard Klein and Margaret Klein his wife, against Jacob Laudman and Christina Laudman his wife, for slanderous words spoken of and concerning the plaintiff Margaret Klein. The defendants in their answer denied the speaking of the alleged words, and also stated that they had " no knowledge or information sufficient to enable them to form a belief whether the plaintiffs are husband and wife as alleged." At the trial the plaintiffs introduced in evidence a certificate of marriage showing that they had intermarried August 19, 1843. The slanderous words were also proven. The defendants introduced in evidence, against the objections of plaintiffs, declarations made by the plaintiff Margaret Klein, that previous to her marriage with the plaintiff Leonard Klein, she had been married in Germany to another man. The plaintiffs offered to prove by parol evidence that said former marriage had been legally annulled and dissolved in Germany previous to the marriage of plaintiffs. The court refused to admit the testimony. The court gave the following instruction at the instance of defendants: " 1. If the jury find from the evidence that the plaintiff Margaret Klein was married in Germany to another person than Leonard Klein, the plaintiff, then such relation is presumed to continue; and it devolves upon the...

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