Jordan v. Missouri & Kansas Telephone Co.

Decision Date01 February 1909
Citation136 Mo. App. 192,116 S.W. 432
PartiesJORDAN v. MISSOURI & KANSAS TELEPHONE CO.
CourtMissouri Court of Appeals

The Court of Appeals will not review an objection to the admission of evidence on a ground not raised below.

10. TRIAL (§ 83)—OBJECTIONS—SUFFICIENCY.

An objection to the admission of evidence is insufficient, where it states no ground.

11. MASTER AND SERVANT (§ 226)—RISKS ASSUMED —NEGLIGENCE.

An employé does not assume the risk of injury from the employer's negligence.

12. MASTER AND SERVANT (§ 236)—FOREIGN DANGEROUS AGENCIES—EMPLOYÉ'S DUTY.

An employé must exercise care to avoid any foreign dangerous agency of which he knows.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Jessie O. Jordan against the Missouri & Kansas Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. F. Ryan and Gleed, Hunt, Palmer & Gleed, for appellant. Mytton, Parkinson & Crow, for respondent.

ELLISON, J.

The plaintiff, claiming to be the widow of Conrad A. Jordan, brought this action for damages on account of his death, occurring while in defendant's employment, and, as is charged, through defendant's negligence. The judgment in the trial court was for the plaintiff. Defendant denied that plaintiff was Jordan's widow, and placed its denial on the ground that at the time of the ceremony of marriage between them Jordan had a living wife from whom he had not been divorced, and, under the statute (section 4313, Rev. St. 1899 [Ann. St. 1906, p. 2370]), such marriage was void.

The following facts developed at the trial: Jordan and Ethel Hannah lived in the state of New York. Ethel married Thomas Meskill, and thereafter, discovering that he had concealed from her that he had a bad disease at the time of their marriage, she brought an action in the proper court in New York to annul the marriage on account of the fraud of Meskill in thus concealing his loathsome disease, which, it seems, may be done in that state. An interlocutory decree was entered for her on the 1st of November, 1902, and a final decree was entered on the 27th of February, 1903. After the interlocutory decree, but before the final decree, viz., some time in the month of November, Jordan and Ethel went into the state of New Jersey and were married; that is, they had a marriage ceremony performed and then immediately returned to New York. They lived together for some months, until August, 1903. Jordan then came out to St. Louis, in this state, and on the following 16th of March, 1904, he and plaintiff were married in that city. If the marriage between Jordan and Ethel Meskill was a valid marriage, then Jordan and this plaintiff's marriage was void, for the case shows that Ethel was then alive and no divorce had been obtained. So the parties hereto join issue on the validity of the former marriage. Plaintiff insists that, it having taken place before the final decree in Ethel's favor annulling her marriage with Thomas Meskill, she had a living husband at the time, and her marriage with Jordan was an idle and unlawful ceremony and void; while defendant contends that the interlocutory decree was a sufficient annulment of the Meskill marriage to make the marriage of Ethel to Jordan valid, or, if not, the final decree afterwards pronounced related back to the date of the marriage and made it void from the beginning.

To concede that a void marriage (as, for instance, where one of the parties was already a married person) may be disregarded and another marriage had without annulling the void one, the concession would not aid the defendant in its contention that Jordan's marriage with Ethel was valid, for her marriage to Meskill was not "void," it was merely "voidable," and there is a vast difference between the two words, or the two situations they describe. It is true that there are decided cases and instances where text-writers use the two words interchangeably; but, when attention is called to the distinction between them and the difference in the consequences which results from the conditions they stand for, it is believed there can be but one opinion. Tomppert v. Tomppert, 76 Ky. 326, 26 Am. Rep. 197. A voidable contract is good until avoided, and, if never renounced or disowned, it remains valid. Thus in the present instance, Ethel was deceived by the assurance that Meskill was free from disease. The law does not prohibit a woman from marrying a man who has a disease, and, if she so wishes, she may contract such a marriage; but the law does prohibit her from marrying a married man, or her brother. The former act, if the disease was unknown, may be avoided on the ground of fraud; but, if the defrauded party concludes that she will overlook the false representations, there is no law to say that she shall not. The principle is the same as in any other contract, though there is a difference in the remedy by reason of the peculiarity of the marriage contract and its relation to the social order. In the ordinary contract the defrauded party may rescind, and the two may voluntarily put themselves back in their former position; but in the marriage contract, not absolutely void, while the defrauded party may have the right to rescind, so to speak, the rescission must come through the pronouncement of a competent court. The difference results...

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  • Galentine v. Borglum
    • United States
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    • 7 Abril 1941
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