Oliphant v. Louisiana Long Leaf Lumber Co.

• Decision Date: 28 March 1927
• Docket Number: 28398
• Citation: 112 So. 500,163 La. 601
• Court: Louisiana Supreme Court
• Parties: OLIPHANT v. LOUISIANA LONG LEAF LUMBER CO

112 So. 500

163 La. 601

OLIPHANT v. LOUISIANA LONG LEAF LUMBER CO

No. 28398

Supreme Court of Louisiana

March 28, 1927

Judgment of trial court and of Court of Appeal annulled and set aside, and case remanded.

J. O Gunter and Jas. W. Jones, both of Natchitoches, for plaintiff.

Thornton Gist & Richey, of Alexandria, for defendant.

OVERTON J. O'NIELL, C. J., dissent.

OPINION

OVERTON, J.

Amos Oliphant was employed by defendant to assist in loading logs on its trains, and, while engaged in the discharge of his duties, was accidentally killed.

Plaintiff claims to be Amos Oliphant's widow. She has brought this suit to recover compensation from defendant, under the Employers' Liability Act (Act No. 20 of 1914), for Oliphant's death. Defendant denies that plaintiff was ever legally married to Oliphant, and avers substantially that she could not have married him legally, because he was already married to one Bertha Johnson.

During the course of the trial, defendant, with the end in view of laying a foundation to offer parol evidence of the alleged marriage of Amos Oliphant and Bertha Johnson, offered a certificate, signed by the clerk of court of the parish of Natchitoches, for the purpose of showing that he had examined the indices to the marriage records of his parish from 1900 to 1919, which period includes the date at which it is said that Amos Oliphant married Bertha Johnson, and that he failed to find a certificate showing that the marriage had been celebrated, and further certifying that the marriage records during that period were incomplete. The certificate was objected to by plaintiff on the ground that it was only an ex parte statement of the clerk and was inadmissible. The trial court sustained the objection. Defendant then placed one of its attorneys on the stand, who stated that he, together with the clerk, examined the indices of the marriage records, and failed to find a certificate showing the marriage of Amos Oliphant and Bertha Johnson, and that the marriage records appeared incomplete. Defendant then placed on the stand John Lynch, a brother-in-law of Amos Oliphant, and also Amanda Lynch, who was the latter's sister, and propounded to them questions for the purpose of showing that they were present at the marriage of Oliphant and Bertha Johnson, and knew that they were married, and also to show whether or not they had ever seen a marriage license issued by the clerk of court of Natchitoches parish authorizing the marriage of Oliphant and Bertha Johnson. A question was also propounded to Amanda Lynch for the purpose of showing that prior to the time plaintiff was said to have married Oliphant, the witness told plaintiff that Oliphant was married and had not obtained a divorce. These questions, except the last one, were objected to on the ground that parol evidence to show the marriage was inadmissible, until it was first shown that a license was issued authorizing the marriage and a proces verbal of the marriage made, and that the license and proces verbal had been lost or destroyed. The last question was objected to on the ground that defendant must first show by competent evidence a prior marriage of Amos Oliphant with another before it could show a lack of good faith on the part of plaintiff in marrying Oliphant. These objections were sustained by the trial court, and a judgment rendered against defendant. On appeal, the Court of Appeal approved the rulings of the district court, as to the inadmissibility of the foregoing evidence, and, on the merits, affirmed the judgment of that court.

The Court of Appeal, in passing on the admissibility of the parol evidence offered to show the marriage, after reviewing the cases cited for its consideration, said:

"We conclude that the best evidence of a marriage is the record of a license and proces verbal of the marriage, required by law to be made, and that until there is preliminary proof offered to show that such record has been lost, destroyed or not made, or circumstances shown indicating that the marriage was celebrated without a license, parol proof of the marriage is not admissible, over objection timely made. * * *"

In our opinion the Court of Appeal erred in not holding that the parol evidence offered to show the prior marriage was admissible, and in not remanding the case for the admission of the evidence. In Holmes v. Holmes, 6 La. 463, 470 (26 Am. Dec. 482) it appears that:

"On the trial, the plaintiff offered witnesses to prove that the plaintiff and Mrs. Holmes, who were then in court, had lived in New Orleans a length of time and had a family, and were reputed husband and wife."

In passing upon a bill of exceptions, taken to the ruling of the trial judge excluding this evidence, our predecessors said:

"It is contended on the part of the appellee, that as the Code requires marriages to be celebrated in the presence of three witnesses, and an act to be drawn up and signed by the parties, the witnesses, and the person performing the ceremony, parol evidence is inadmissible to prove a marriage in this state.

"Marriage is regarded by our law in no other light than as a civil contract, highly favored, and depending essentially on the free consent of the parties capable by law of contracting. Our Code does not declare null a marriage not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties; nor does it make such an act exclusive evidence of a marriage. These laws relating to forms and ceremonies, here regarded as directory to those alone who are authorized to celebrate marriages, are intended to guard against hasty and inconsiderate marriages in defiance of parental authority. Like all other contracts, it may be proved by any species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party. * * *" (Italics ours.)

In Succession of Hubee, 20 La.Ann. 97, in passing upon the admissibility of parol evidence to establish a marriage, it was said:

"It has been repeatedly held that the law does not declare null marriages in which the laws relating to forms and ceremonies have not been observed; that marriage may be proved by any species of evidence not prohibited by law, which does not presuppose a higher species of evidence within the power of the party. Taylor v. Swett, 3 La. 33, 22 Am. Dec. 156; Hobdy v. Jones, 2 La.Ann. 944; Hubbell v. Inkstein, 7 La.Ann. 252; Succession of Taylor v. Taylor, 15 La.Ann. 313.

"A registered act of marriage would be conclusive evidence of the fact of marriage, and if such an act were extant upon the public records, it would be difficult to impute to the party on whom the proof devolved a sinister motive for not producing it. The failure to produce evidence, which would be so conclusive, carries rather with it the presumption that it does not exist."

In Albinest v. Yazoo & Mississippi Valley Railroad Co., 107 La. 133, 31 So. 675, which was a suit in which the plaintiff sued for damages for the accidental killing of one whom she alleged to be her husband, in which one of the defenses was that the...