Harper v. Atlanta & W.P.R. Co.

• Decision Date: 15 December 1924
• Docket Number: 15619.
• Parties: HARPER v. ATLANTA & W. P. R. CO.
• Court: Georgia Court of Appeals

125 S.E. 885

33 Ga.App. 259

HARPER v. ATLANTA & W. P. R. CO.

No. 15619.

Court of Appeals of Georgia, Second Division

December 15, 1924

Syllabus by the Court.

Where it is recited in a bill of exceptions to the direction of a verdict that the direction was based expressly upon one issue alone, a motion to dismiss the writ of error upon the ground that the material evidence touching the other issue or issues is not brought up in full will not be sustained, where it does not affirmatively appear in the record that the complaining party is precluded upon some other issue than that upon which the verdict was directed. In such a case it is sufficient for the plaintiff in error to set out all the material evidence introduced on that issue upon which the trial judge directed the verdict against him. Even if it were otherwise, it is questionable whether the bill of exceptions should be dismissed or whether the judgment of the trial court should be affirmed.

A bill of exceptions complaining of the direction of a verdict upon a certain issue will not be dismissed, because the bill of exceptions may disclose that not all of the evidence relating to such issue is brought up, provided it appear that all the evidence necessary to a decision of the question raised is brought up. It affirmatively appears from the bill of exceptions that certain evidence, introduced in the court below, relating to the issue upon which the trial judge directed a verdict, which direction is assigned as error, has not been brought up in such a way as to enable this court to consider it. But the bill of exceptions will not for that reason be dismissed, since, whatever may have been the effect of the evidence omitted, it could not be material or relevant in the decision of the particular point raised by the assignment.

Where a woman was divorced in a foreign state, and it was decreed that she should not have the privilege of marrying again for 60 days after the decree, assuming that her marriage to another in that state within the period of the impediment was void and even criminal, and that, under the laws of that state, they never became husband and wife, even after the expiration of the 60-day period, yet when they thereafter removed into the state of Georgia and openly declared their intention to be husband and wife, and lived together as such for a number of years, during which time they were regarded by their friends and acquaintances as husband and wife, and a deed was made by the man to the woman, describing her as his wife, and reciting a consideration based upon his love and affection for her as such, which deed she accepted, such conduct in this state authorized the inference of lawful wedlock between them under the laws of Georgia.

(a) In the trial of a case involving the issue as to whether such man and woman became lawfully married under the laws of Georgia, under the circumstances set out above, the trial court erred in directing a finding that no such marriage had taken place.

Additional Syllabus by Editorial Staff.

One is not permitted to set up ignorance of law as exemption from punishment for crime, or for damages for torts, but knowledge of law will not be conclusively imputed to every person for all purposes.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Martha Harper against the Atlanta & West Point Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

E Smythe Gambrell and Underwood, Pomeroy & Haas, all of Atlanta, for plaintiff in error.

Dorsey Brewster, Howell & Heyman, of Atlanta, for defendant in error.

BELL J.

Martha Daniel brought suit againt Atlanta & West Point Railway Company for the homicide of her alleged husband, Olin Daniel. The defendant denied that it was negligent, and also that the plaintiff was the widow of the deceased. The plaintiff married Harper after the filing of her suit, and the action was amended so as to proceed in her new name. Upon the trial the court directed a verdict in favor of the defendant, and the plaintiff excepted.

The following facts are recited in the bill of exceptions: The plaintiff testified that she was the wife of Olin Daniel at the time of his injury and death; she then introduced five witnesses who testified concerning the homicide of her husband, and rested. The defendant, without motion of any kind, proceeded to introduce evidence upon the issue of negligence. Upon the issue of the plaintiff's alleged widowhood the defendant "introduced the case of Attorney General v. Vance, 210 Ala. 9, 97 So. 230, as evidence of the Alabama law upon the matter of marriage and divorce" the same not being otherwise referred to or more fully shown in the bill of exceptions; a decree rendered by the circuit court of Jefferson county, Ala., on December 1, 1916, granting to the plaintiff a complete divorce from one Arthur Powell, to whom she had thitherto been married, in which decree it was "ordered and adjudged * * * that said Martha Powell [the plaintiff herein] shall not again marry, except to said Arthur Powell, until 60 days after this date, and that if an appeal is taken within 60 days she shall not marry again except to said Arthur Powell during the pendency of said appeal"; and a certified copy of the record of the marriage in Alabama on December 12, 1916, of the plaintiff to Olin Daniel, the decedent. The plaintiff then testified in rebuttal as follows:

"I was first married in Alabama to Arthur Powell, and obtained a divorce from him in the circuit court of Jefferson county, Ala., which is at Birmingham. I do not remember the date when this divorce decree was granted, but I know that I had obtained the decree before I married Olin Daniel, who was my second husband, and whom I married on December 12, 1916. I understood and believed at the time I married Olin Daniel, that I was completely divorced from Arthur Powell, and had an immediate right to remarry, and I openly married Olin Daniel to the knowledge of all my friends and acquaintances in Birmingham, and Olin Daniel and I immediately set up housekeeping at the home of my mother in Birmingham, where all of our mutual friends regarded us as man and wife, and I held Daniel out to be my husband, and he held me out to be his wife to the members of our own families and to people with whom we were acquainted. We were married in regular form; we obtained a license and went through with a regular marriage ceremony in good faith. He lived with me in our home as my husband and I with him as his wife, and we continued to so live in Birmingham for several months, until April, 1917, when we moved to Atlanta and set up housekeeping in a house which we bought with our joint funds. When I came to Atlanta he introduced me to his people here as his wife, and into his church and to his pastor as his wife, and we were known to all of our friends, relatives, and acquaintances in Atlanta as Olin Daniel and Martha Daniel, his wife. We lived together in Atlanta from the spring of 1917, when we moved here from Birmingham, until his death in May, 1922. During that period we were attentive to each other as man and wife, and he was not attentive to any other woman, nor was I attentive to any other man. One child was born to us during our married life. This child is dead, and there are no children of Olin Daniel or of myself now living. I never heard him say after we went through the marriage ceremony in Birmingham in December, 1916, that I was not his wife, and he always treated me as such. On December 11, 1918, he deeded to me a tract of land on Smith street in Atlanta, this being the deed."

The plaintiff, as a witness, here exhibited and identified a duly executed and recorded deed from Olin Daniel to Martha Daniel, dated December 11, 1918, reciting that Olin Daniel of Fulton county, Ga., was party of the first part, and "Martha Daniel, his wife," of the same place, was party of the second part, and that the party of the first part, in consideration of love and affection for his said wife, granted and conveyed unto her a certain described lot in the city of Atlanta. The plaintiff further testified:

"When Olin Daniel and I were married on December 12, 1916, we began to live in the same house and occupy the same home, and in every sense lived as man and wife, and we so regarded each other at the time of his injury and death on May 12, 1922."

The plaintiff called the court's attention to certain decisions of the Supreme Court of Alabama, described in the bill of exceptions only by name, volume, and page "declaring the Alabama law to recognize common-law marriages. * * * The court, without objection from the opposing counsel, accepted these decisions as containing the Alabama law." The defendant thereupon asked the court to direct a verdict in its favor, "stating as the only ground for such request that the plaintiff had not shown herself to have been the legal wife of the deceased, Olin Daniel, at the time of his injury and death, nothing being said as to the sufficiency of the evidence of negligence. After a hearing of argument upon this sole point, * * * the court directed a verdict in favor of the defendant, stating that said verdict was directed solely upon the question...