Blanks v. Southern Ry. Co.

• Decision Date: 11 January 1904
• Citation: 35 So. 570,82 Miss. 703
• Court: Mississippi Supreme Court
• Parties: MARGARET BLANKS v. SOUTHERN RAILWAY COMPANY

35 So. 570

82 Miss. 703

MARGARET BLANKS v. SOUTHERN RAILWAY COMPANY

Supreme Court of Mississippi

January 11, 1904

FROM the circuit court of Clay county. HON. WILLIAM F. STEVENS Judge.

Mrs Blanks, appellant, was plaintiff in the court below; the railway company, appellee, was defendant there. In truth however, the suit was defended (for reasons apparent from the opinion of the court) by the brothers and sisters of Daniel Blanks. The court below gave a peremptory instruction for defendant, and from a verdict and judgment in pursuance thereof, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

F. G Barry, for appellant.

If the Beardsley Case, 79 Miss. 417, and the cases of our state which it follows, are to continue to be the law, then, in my opinion, this case is bound to be reversed.

First. If the learned judge in the court below was satisfied that the marriage of Maggie and Ran Blanks was a valid common law marriage, then he should have given the peremptory instruction asked by Maggie Blanks, in accordance with the positive and distinct law as laid down in the Beardsley Case.

Second. If the learned judge below did not believe this was a common law marriage, then he usurped the function of the jury and decided a fact which should have been left to the jury. The testimony is overwhelming that this was a valid common law marriage, instituted somewhere about 1884, 1885, or 1886. It unmistakably antedates our Code of 1892, abrogating common law marriages.

The next proposition I beg to submit is, and which is undisputed, that every presumption of innocence is to be indulged in favor of marriages; and I find no law attaching any additional solemnity to a statutory over a common law marriage. A common law marriage, where permitted, is as sacred in the eye of the law as one solemnized by an archbishop, to the strains of Mendelshon's marriage march, or even by a justice of the peace, or a grave and dignified member of the board of supervisors. This presumption of innocence is not confined to any special period when the marriage is solemnized, or entered into.

Third. But I submit if a marriage is entered into before the expiration of the seven years' statute, which raises a presumption of death after the absence of party unheard of and in unknown parts, then this presumption of innocence ripens unto one of perfect immunity to the deserted spouse who has married; that the presumption of innocence at the end of the seven years becomes conclusive and was a shield and protection to Maggie Blanks as much as if Lawson Parker had been, in fact, dead. The proof is positive and clear that for the entire period of seven years after her marriage with Ran Blanks and the departure of Lawson Parker, her supposed husband, no one knew or heard of the said Lawson Parker.

McWillie & Thompson, on same side.

The court below at the conclusion of the evidence resolved the question, as a matter of law, and gave a peremptory instruction for defendant, and the plaintiff hath appealed to this court.

Of course, the main question before this court, and the only one on this branch of the case is, whether or not a verdict in plaintiff's favor, if rendered, should have been permitted to stand as one supported by evidence, and on this point the inquiry is, did any of the evidence tend to support plaintiff's case so as to make it a proper one to have gone to the jury?

To understand the plaintiff's case it is necessary, first, to determine the date of her marriage--a good common law marriage--to the deceased Daniel Blanks. The date is not shown absolutely, but the evidence clearly and unmistakably fixed the date as anterior to the adoption of the Code of 1892.Therefore, Code 1892, § 2864, has no application to the case.

The evidence is certainly ample to establish not only prima facie but almost conclusively a valid common law marriage. 19 Am. & Eng. Enc. Law (2d ed.), p. 1181, and authorities cited.

Such marriages were recognized as valid in Mississippi before the adoption of the Code of 1892. Dickerson v. Brown, 49 Miss. 357; Floyd v. Calvert, 53 Miss. 37; Rundle v. Pegram, 49 Miss. 751; Hargroves v. Thompson, 31 Miss. 211.

It was not shown absolutely and conclusively that plaintiff's pretended first marriage, the one to Lawson Parker, was valid.

If the marriage to Parker was valid, yet every presumption favors the validity of the second one -- the marriage to Dan Blanks; even a divorce from the first husband will be presumed, and the burden of proof was on defendant to rebut these presumptions. No evidence whatever was introduced to rebut presumptions, nothing to show that a divorce was not obtained; on the contrary, the testimony at least slightly tends to show a divorce.

The case of Alabama & Vicksburg Ry. Co. v. Beardsley, 79 Miss. 417, settles this question.

S. G. Ivey and T. C. Kimbrough, for appellee.

In Alabama & Vicksburg Ry. Co. v. Beardsley, 79 Miss. 417, this court says "that a divorce from a former wife who is still living will, in the absence of other evidence, be presumed upon due proof of the husband's second mariage. A marriage duly proven will be presumed valid, etc."

There was no question about the second marriage in that case. It appeared uncontradicted that it had been solemnized according to the form of law, every presumption must be indulged in favor of its validity. Hull v. Rawls, 27 Miss. 471; Powell v. Powell, 27 Miss. 783; Ward et al. v. Dulaney, 23 Miss. 410; Wilkie v. Collins, 48 Miss. 496.

Mayes & Longstreet, on same side.

This case is not controlled by the Beardsley Case, 79 Miss. 417. It is in a very different attitude. There the court had before it only three facts: (1) the former marriage, (2) the later marriage, (3) the life of the former wife. The question of the validity of the second marriage had not been put formally in issue by the pleadings, but cropped out as a surprise to the plaintiff on the trial;...