Alabama & V. Ry. Co. v. Beardsley

• Decision Date: 11 November 1901
• Citation: 79 Miss. 417,30 So. 660
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. MARY BEARDSLEY
• Court: Mississippi Supreme Court

30 So. 660

79 Miss. 417

ALABAMA & VICKSBURG RAILWAY CO. v. MARY BEARDSLEY

Supreme Court of Mississippi

November 11, 1901

FROM the circuit court of second district, Hinds county. HON ROBERT POWELL, Judge.

Mrs Beardsley, the appellee, and one Mrs. Maud Staples were plaintiffs in the court below; the railway company appellant, was defendant there. The declaration was a joint one by the two plaintiffs; it demanded damages for the wrongful killing of one Seth Marvin Beardsley who was killed in a collision between trains on appellant's railway near Jackson, November 17, 1900; and it averred that plaintiff, Mrs. Beardsley, was the lawful wife and Mrs Staples the lawful daughter of the decedent who was charged to have been a passenger on one of said trains. The plea was not guilty. On the trial it appeared, uncontradictedly, that the decedent first married a woman, one Frances Beardsley, the mother of Maud Staples, one of the plaintiffs, who was still living at Topeka, Kansas; that he afterwards married Mary Beardsley, the appellee, in the State of Missouri, and there was no evidence whatever of a divorce from the first wife. The court below peremptorily gave judgment for the defendant as against Maud Staples, but held that Mary Beardsley was, entitled to have the case submitted to a jury on the issues made, in respect to which the testimony was conflicting, as to whether the decedent was a passenger or trespasser on the train, and, if a trespasser, whether defendant's negligence was of such gross character as to entitle her notwithstanding to a verdict. The jury found for the plaintiff, Mary Beardsley, awarding her $ 9,000, and judgment was entered accordingly. The railway company appealed to the supreme court from the judgment against it, but Maud Staples did not appeal.

Affirmed.

McWillie & Thompson, for appellant.

The declaration, which is the pleading of both of the joint plaintiffs, to the same extent as if either of them had made the same as sole plaintiff, alleges a right of action in Maud Staples, as the only legitimate child of the decedent. The mother of this legitimate child must necessarily have been the wife of the decedent, and when it came out in the testimony of Mary Beardsley that Maud was not her daughter, but the daughter of Frances Beardsley, the abandoned wife of the decedent, who was still living, there was no way whereby the plaintiff, Mary Beardsley, could show a right of action in herself without proving a divorce a vinculo of the decedent from Frances Beardsley. Mary's verbal statement on the witness stand as to the fact of a divorce was excluded, on the objection of the defendant, and the case then stood with the right of action, if any, outstanding in the mother of Maud, from whom it was not shown the decedent had ever been divorced.

With the case in this attitude, Mary Beardsley left the stand, but, on being recalled, was allowed to testify, over defendant's objection, that her knowledge of Beardsley's marriage to Maud's mother was hearsay, and that she had no personal knowledge on the subject. It is thus seen that, when the plaintiff failed to show a divorce from the wife, still living, she was allowed to negative her previous statement in reference to Frances Beardsley and to contradict the allegations of her own declaration to the effect that Maud was the offspring of a previous valid marriage. We submit that this was not allowable. The court could not presume a divorce a vinculo, and such a divorce is an essential part of the proof of one who sues as the wife of a man who was the husband of another living woman. Mary Beardsley's pleadings set up a previous valid marriage, and she is bound by them. She never asked leave to amend or withdraw them, nor did she ask time to prove the divorce. The validity of the marriage to which Maud Staples owed her being was a judicial admission arising on the face of the declaration, the effect of which the plaintiff cannot evade at pleasure. 11 Am. & Eng. Enc. L., 391; George's Digest, title "Evidence," 19.

Litigants should not be allowed to take positions inconsistent with each other, and with the declaration in the case averring Maud Staples' legitimacy, Mary Beardsley should not have been allowed to dispute it. 11 Am. & Eng. Enc. L., 446.

After the court had admitted the testimony of Mrs. Beardsley going to dispute the previous marriage, the defendant asked her this question, which was excluded on the objection of the plaintiff: "You say he told you he had been married?" This question was competent, in view of the circumstances under which it was asked. Wise v. Wynn, 59 Miss. 588. But even with this question unanswered the plaintiff has shown no right to maintain the action as Beardsley's wife, for her declaration showed a previous valid marriage, and her testimony showed that the former wife was still living, and all evidence of a divorce had been excluded. The presumption in favor of the validity of a marriage ceases when it is seen that there existed a legal impediment to the marriage. When this impediment is a previous valid marriage to a person still living, the only legal presumption arising on the facts is that the status of the first wife continues to exist, and this presumption can only be overcome by proof of a divorce a vinculo.

The two Mississippi cases cited by the appellee on this head relate to the presumption of life which ceases after the lapse of a certain period, because of the casualties and bodily infirmities incident to all human life, together with its brevity--a reason which in no manner affects the question of divorce from a person known to be still alive. The divorce from the former wife, if any was ever granted, must be a matter of record, and the court will not presume the existence and contents of a record. Even if there was ever such a proceeding, the decree therein may not have been one which left the husband free to marry again. Streeter v. Streeter, 43 Ill. 155; Com. v. Boyer, 7 Allen (Mass.), 306; State v. McElurray, 3 Strobb. (S. C.), 33, 41.

The appellee is greatly in error when she urges that the question is one of distribution only. Apart from the question as to who is entitled to recover as widow, the measure of recovery would be different as between the appellee and the former wife. The former abandoned wife received nothing from the decedent towards her support, while the appellee claims to have derived her whole support from him. She is also mistaken in saying that this question of the validity of her marriage was suddenly sprung in the course of the trial. The appellee and the decedent were strangers to the defendant, who knew nothing about their domestic relations, but in the effort to learn something in advance of the trial, admonished the plaintiff, through cross interrogatories, when she proposed (as she did, but afterwards abandoned so doing) to testify by deposition, that her rights to recover as Beardsley's widow was under suspicion, to say the least, and would be zealously contested.

The court was right in directing a verdict for defendant as to Maud Beardsley, for, under the act of 1898, while she and her mother might have prosecuted the action in conjunction, yet if only one of them sued, her mother should have been the one, since the statute allows but one action for the same death, and in designating the persons who may bring it, recognizes the widow's priority of right over her children, although it permits all persons interested to sue in one action. Laws 1898, p. 83.

[The counsel elaborately argued the other questions in the case, but as the opinion of the court touches them so slightly a synopsis of their argument upon them is omitted.]

Brame & Brame and J. J. Jones, for appellee.

In favor of the validity of a second marriage contracted by a woman while her first husband is alive, it will be presumed that the first marriage was legally dissolved before the second marriage was entered into, and one who asserts the invalidity of the latter marriage, must show that there had been no divorce....