Williams v. Walton & Whann Co.
| Decision Date | 14 June 1892 |
| Parties | ANNA MARIA WILLIAMS v. WALTON & WHANN Co |
| Court | Delaware Superior Court |
ACTION on the case for damages for the death of plaintiff's husband caused by injuries incurred while in the employ of defendants. The facts appear in the opinion of the Court.
This case was first tried at the February term, 1892, at which trial, Benjamin Nields, for the defendants, offered strict legal proof of a marriage of Joshua Williams and Jane Tate prior to the marriage of Joshua to the plaintiff in this case.
Lewis C. Vandegrift called a witness (to the ceremony--not the officiating minister) on behalf of the plaintiff to prove marriage of the deceased prior to the marriage set up by the defendants, the woman to whom he was so married being alive and not divorced at the time of the alleged marriage with Jane Tate, but who expired before he married the plaintiff.
Mr Nields objected to the admission of this testimony on ground that these facts must be proved strictly by the record. As to what is strict proof, he cited 1 Houston, 332; Pettyjohn v. Pettyjohn, 5 Ecclesiastical Reports, 554; Bishop on Marriage and Divorce, 283-88.
Mr Vandegrift replied: contending first that the celebration of the marriage may be proved by any person present; second that the sufficiency of the celebration is presumed until the contrary is shown. Myra Clark Gaines v. Patterson, Supreme Court of the United States, in 6th Howard, 550; 10 East's Reports, 282; 14 Amer. Ency. of Law, 525, bottom paging (under which a number of cases were cited; among them was 10 N. Y. Reports, 480 to which special attention was called); 1 William Blackstone, 367, star paging; 61 Penna State, 361; Taylor v. Taylor, 5 Ecclesiastical Report, 454; Laws of Delaware on Marriage; McCaffrey v. Heritage, 5 Houston.
Verdict for the plaintiff for $ 900.
Vandegrift and Prickett, for plaintiff.
Benjamin Nields, for defendant.
--The question that has been raised here is a very interesting one. It has been very fully argued and the court have carefully gone over the decisions which have been cited in this case and we feel, that under the circumstances, this evidence is properly admissible. We put it upon this ground: While an actual marriage must be proved in cases of "Crim. con.," adultery, bigamy, etc., in civil cases presumptions are sufficient of cohabitation, living together, passing as man and wife, etc. This is a civil case, but by common consent on both sides, it appears, as we understand, that you propose to prove an actual marriage. Now the question is, what in law constitutes an actual marriage? In order to ascertain that fact, we may go to cases, for instance, of "Crim. con.," or cases of bigamy, and there it appears to be very clearly laid down in the authorities and decisions, so that it never appears really to have been questioned.
In the first authority here on this subject (Greenleaf on Evidence) the proof of marriage as one of the special issues is either by direct establishing the fact, or by the evidence of collateral facts and circumstances from which its existence may be inferred; evidence of the former kind--that is, direct evidence, proving the formality, or what is equivalent to it--is required upon indictments for bigamy or in actions of "Crim. con.," it being necessary in such cases to prove a marriage valid in all respects--that is, proof of an actual marriage is required. Russell on Crimes, last edition, 316 (read). In cases of bigamy the actual marriage comes in and forms one of the direct issues, and therefore there must be a marriage in fact proved. Either some person present at the marriage must be called, or the original register, or an exact copy of the same must be produced. That is the common law provision. Then under 4th George, Chap. 76, Sec. 28 it is provided that marriages shall be solemnized in the presence of two or more witnesses, besides the minister who celebrates the same. But upon a provision nearly similar in a former marriage act, it was held not to be necessary to call one of the subscribing witnesses to the register, in order to prove the identity of the parties married; but that the register or a copy of it being produced, any evidence which satisfied the jury as to the identity of the parties was sufficient. That is sustained by Fourth Burris, 2057;--Douglas, 164 (read). That appears to be the ruling of the English Courts on the marriage law, and such, I consider, is in force in this State.
After all, this testimony (which we think is admissible) is for the jury. It is for them to pass upon, as to whether or not they are satisfied with the testimony that goes in as establishing a marriage. I would say here that what we decide in this matter is only that this is proof to go to the jury.
There is a very interesting case in Sergeant; it appears in the English Ecclesiastical Reports. The law is not carried to the extent here that it is in England. There they have registers, such as de don't have in this country, and hence it has been customary in this country not to require that degree of strictness that is required in the English Ecclesiastical Court. That case is fully commented upon (and sustains this opinion) in one of the cases cited by Mr. Nields. There has been proof here that the man was an ordained minister; but really, so far as the law goes, it was not necessary to prove it any further than the fact from which the presumption arises, the presumption being in favor of marriage when you raise that presumption. For instance, the person was present at the marriage, it was celebrated by the minister, or by some man holding himself out and reputed to be a minister of the gospel: then that is a presumption, good until it is rebutted. Therefore, upon that proof being adduced, the case is open for the other side to show that this man had no right to celebrate the bans, and to rebut that presumption which has been raised.
We think, for these reasons, that it is perfectly competent for this testimony to go in.
The jury disagreed.
At the second trial, Nields for the defendant, inquired of the witness, John R. Bonner, superintendent of the defendant company, regarding verbal reports made to him by a deceased foreman, Mr. Smedley, acting under Bonner, as follows:
Did Mr. Smedley make any report to you on Tuesday in relation to his business that was necessary for you to know in connection with that business, and if so what was it, and is that the only way he made reports to you?
Vandegrift for plaintiff, objected to the question, under the previous ruling of the Court,--viz: that mere conversations with the deceased were not admissible--contending that the witness had himself shown that it was not a report, but a conversation in which he (the witness) inquired of Smedley as to the business, and that the conversation was not volunteered by Smedley, and could not therefore be a report.
CULLEN, J., The Court rule in the reports that were made in the ordinary transaction of business, provided they are connected with the matters in issue, and can be recollected and stated by the witness; but we rule out all conversations that took place as between subordinates and superiors or any conversation with the party deceased, as hearsay evidence. If it was customary for the subordinates to go and report at any time in the day verbally, the witness if acquainted with what that report was, could testify as to it, but not as to any conversations he may elicit from questions asked by him during the progress of the work. He cannot speak as to any conversations commenced by himself.
CULLEN, J., charging the jury:
Gentlemen of the Jury: This action is brought by the plaintiff, Anna Maria Williams, widow of Joshua Williams, deceased, against Walton & Whann Company, a corporation existing under the laws of this State; the suit is founded upon the second section of the statute in the Revised Code, page 644, and is in these words: "Whenever death shall be occasioned by unlawful violence or negligence and no suit brought by the party injured to recover damages during his or her life, the widow of any deceased person, or, if there be no widow, the personal representative may maintain an action for and recover damages for the death thus occasioned. The plaintiff seeks to recover under the provisions of the said Act from the said defendants by reason of injuries received as alleged, by Joshua Williams, deceased, her husband, while in the employ of said defendants through their negligence.
It has been shown that the defendants as a corporation existing under the laws of this State, were at the time mentioned when the said grievance took place, engaged in the manufacture of phosphates, in the County of New Castle, near the City of Wilmington, for which purpose they had erected several buildings, covering with their appurtenances a large space of ground, and that in the carrying on of said business, it became necessary to manufacture sulphuric acid in large quantities, since the same largely entered as a necessary ingredient into the phosphates by them manufactured. For the manufacture of said acid there was erected as a part of said works a large building (which communicated with several other buildings used for a like purpose) some fifty by twenty-five feet and about twenty-five feet high, the walls of which were lined with lead, and the floor covered with lead. By the burning of a substance called iron pyrites, the fumes from which connected with other chemicals were...
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