Sullivan v. Grand Lodge Knights of Pythias of Mississippi

• Decision Date: 23 May 1910
• Docket Number: 14256
• Citation: 52 So. 360,97 Miss. 218
• Court: Mississippi Supreme Court
• Parties: EMMA SULLIVAN v. GRAND LODGE KNIGHTS OF PYTHIAS OF MISSISSIPPI

52 So. 360

97 Miss. 218

EMMA SULLIVAN v. GRAND LODGE KNIGHTS OF PYTHIAS OF MISSISSIPPI

No. 14256

Supreme Court of Mississippi

May 23, 1910

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Mrs Sullivan, appellant, was plaintiff in the court below; the Grand Lodge Knights of Pythias of Mississippi, appellee, was defendant there. Mary Davis was interpleaded by the defendant. From a judgment awarding to Mary Davis the money brought into court by defendant, the plaintiff appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

McKnight & McKnight, for appellant.

The peremptory instruction asked by the plaintiff, Emma Sullivan and refused by the court, should have been given: (a) because plaintiff made out a case entitling her to recover; (b) because the case made out by plaintiff was not overcome by the proof in favor of the defendant; (c) because the burden was upon defendant to overthrow both the proof made by plaintiff that her intestate was the wife and sole heir of Jacob Davis, deceased, and the presumption of law in favor of marriage which surrounds said marriage; (d) because the appellee failed in her attack upon the right of appellant to recover on the policy sued on; (e) because the proof of record shows that the appellee was, by reason of a prior and existing marriage with one Brown Hunter, incapacitated to enter into the marriage contract at the time of her alleged marriage with some Jake Davis in the fall of 1892; (f) because appellee utterly failed to show that she was ever married to or even ever saw the Jacob Davis who died the holder of the policy sued on.

A marriage prior to 1892 having been shown and admitted between appellee and one Brown Hunter, and there being no pretense that Brown Hunter was dead or divorced from appellee before the alleged marriage between appellee and some Jacob Davis in 1892, it follows that the court below erred in refusing the second instruction asked by plaintiff.

Even if the very meagre testimony of the appellee (who alone testified upon the subject) could or should be strained to amount to the semblance of proof that Brown Hunter is dead at all, it certainly was not entitled to that dignity as proof which would preclude a dispute as to whether Brown Hunter was alive at the time of appellee's alleged marriage to some Jacob Davis in 1892, yet this is the practical effect of the refusal of the second instruction asked by appellant and refused by the court below.

While the learned gentleman who sat as judge in this case in the court below freely instructed the jury that Mary Davis, the apppellee, must show that she was lawfully married to Jacob Davis, yet no critical reading of the record is necessary to see that by "lawfully married" he meant married by license regardless of her capacity or incapacity to marry and persistently refused to depart from this position and therefore refused the third instruction asked by appellant because it contained the words "being an unmarried woman at the time" which we submit was error.

The court below erred in refusing the instructions asked by the appellant and refused by the court below, then it follows for the same reason that the court below erred in giving the instruction asked by the defendant appellee.

The proof did not justify the giving of this instruction and especially should it not have been given because of appellee's failure to identify the Jacob Davis she claimed to have married with the Jacob Davis who held the policy sued on and because the proof showed that the appellee had a living husband at the time of her alleged marriage with Jacob Davis in the fall of 1892.

The court below erred grievously in holding that the burden was upon appellant to show the invalidity of the marriage between Mary Hunter and Jacob Davis and that the invalidity of the said marriage between Mary Hunter and Jacob Davis could be shown only by positive proof that Brown Hunter was actually alive at the time of the marriage of Mary Hunter to Jacob Davis and this error led the court below into the further error, first, of stopping counsel for plaintiff in their argument before the jury and forbidding them in the presence of the jury to say to the jury that Brown Hunter could not be presumed to be dead as the effect of the statute presuming death from seven years death, and, second, of refusing to allow counsel for plaintiff to argue the evidence as showing that Brown Hunter was alive at the time of the alleged marriage between Mary Hunter and Jacob Davis.

To the contrary of the holding of the court below, as stated in the last paragraph above, the court below should have held, that the burden was on the appellee, Mary Davis, to show affirmatively the invalidity of the marriage between appellant's intestate and Jacob Davis (which marriage was made the basis of the right of plaintiff to recover and which marriage the appellee was attacking, she having taken upon herself the position of a defendant in the suit and having stepped into the shoes, so to speak, of the defendant insurance company under the provisions of Code 1906, § 772), by establishing affirmatively the validity of a former marriage between Jacob Davis and herself while both he and she were free from incapacity to contract marriage.

N. Vick Robbins, for appellee, Mary Davis.

Under the pleadings in this case, two questions were presented for determination in the lower court:--

First. The identity of the Jacob Davis married to Mary Hunter in Washington county, in 1892, and the Jacob Davis killed in Vicksburg in October 1906; and

Second. The validity of the marriage between Jacob Davis and Mary Hunter.

The first question, to-wit: the identity of Jacob Davis has been passed on by the jury in the court below and resolved in favor of the appellee. So the attitude of appellee here is that the Jacob Davis that was killed in Vicksburg in October 1906 is the self same Jacob Davis to whom appellee was married in 1892, in Washington county, Mississippi.

Counsel for appellant insists that there is no evidence in the record to establish this identity. In answer to this we invite the attention of this court to the testimony of Moore, Burns and Bowman.

We invite the attention of the court to the case of Wilkie v. Collins, 48 Miss. 496. The facts in the case are strikingly similar to those in the case at bar and the question presented for adjudication to this court is identical.

Argued orally by Theodore McKnight, for appellant, and by N. Vick Robbins, for appellee.

OPINI ...