Alabama & Vicksburg Railway Co. v. Beardsley

Whitfield, C. J., delivered the opinion of the court. Tbe law presumed the marriage of the appellee to be valid, in the absence of proof by appellant that there had been no divorce from the first wife, who was still living. This is a well settled rule. In Schimmisseur v. Beatrie, 147 Ill., 210, 214 (35 N. E., 525, 526), a precisely similar case, on this point the court said: ‘‘ When a marriage has been solemnized according to the forms of the law, every presumption will be indulged in favor, of its validity. The presumption is one in favor of innocence, as it will be presumed that a man will not commit tbe crime of bigamy by marrying a second time while his first wife is living. Johnson v. Johnson, 114 Ill., 611; 3 N. E., 232; 55 Am. Rep., 883. Absence for seven years without being-heard from creates the presumption of death. But the presumption in favor of the validity of marriage is so strong that a former husband or wife will be presumed to be dead after an absence of less than seven years. The ordinary presumption in favor of the continuance of human life is made to give way to the presumption in favor of the innocence of a second marriage. Yates v. Houston, 3 Tex., 433; Johnson v. Johnson, supra. In the present case, however, no presumption as to the death of Barbara Beatrie can be indulged in favor of the validity of the marriage with Margaret Hube, because the. proof shows affirmatively that said Barbara was alive when said marriage took place, and for nine years thereafter. It is claimed, however, in behalf of appellees, that Nicholas Beatrie, Jr., will be presumed to have been divorced from his first wife before [423] he married the second one. We have said that the courts £ will often presume a previous divorce in order to sustain the second marriage.’ Cartwright v. McGown, 121 Ill., 388; 12 N. E., 737; 2 Am. St. Rep., 105. Bishop, in his work on Marriage, Divorce and Separation, says: ‘In a general way, it is sufficiently established that to sustain a second marriage, a dissolu ■ tion of a former one by divorce will be presumed; but a-long living apart will not commonly create such presumption, and the authorities are not otherwise quite distinct as to the precise limits of the doctrine.’ Bish. on Mar., Div. & Sep., § 1145. The two marriages of Nicholas Beatrie, Jr., and the existence of the first wife at the time of the second marriage, being established by the proof, the presumption would arise in favor of a divorce from the first wife in order to sustain the second marriage. In view of this presumption, the burden of proof rested upon the appellants, as the objecting parties, to show that there had been no divorce. The law is so positive in requiring a party who asserts the illegality of a marriage to take the burden of proving it, that such requirement is enforced even though it involves the proving a negative.” As said by Elliot, J., in Goodwin v. Smith, 72 Ind., 113 (37 Am. Rep., 144), “ When a negative is éssential to the existence of a right, the party claiming the right has the burden of proving such negative. ’ ’ The rule is thus stated in Boulden v. McIntyre, 119 Ind., 574; 21 N. E., 445; 12 Am. St. Rep., 453, in the syllabus: “In favor of the validity of a second marriage contracted by a woman while her first husband is alive, it will be presumed that the first marriage was legally dissolved by a divorce before the second was entered into, and one who asserts the invalidity of the latter marriage must show that there had been no divorce. Where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such a negative; hence, where one bases his claim to land upon the alleged invalidity of a marriage, he must, by proper proof, remove every presumption in favor of the [424] legality of the marriage, although to do • this he must prove a negative. ’ ’ To the same effect are Hull v. Rawls, 27 Miss., 471; Spears v. Burton, 31 Miss., 547, and many other authorities collated in brief of appellee’s counsel. The contention for the appellant that the appellee should have proven that there had been a divorce from the first wife is not sound. Two of the cases cited by appellant’s counsel hold merely that, a divorce can only be proved by the record. The Massachusetts case is squarely in conflict with Reg. v. Curgerwen, L. R., 1 Cr. Cas. 1, and is put upon the ground that the defendant on trial for bigamy had peculiar knowledge whether he had been divorced, and hence should prove affirmatively that he had been — a rather curious line of reasoning as to the principle of evidence involved. So far as estoppel from the declaration is concerned, it could have no further extent than to put the appellee in the attitude of averring that Mrs. Maud Staples was a legitimate child of Beardsley by a former legal wife. But the very same principle above pointed out — that the law will presume, in favor of the innocence of a second marriage, that a former marriage had been dissolved by death or divorce, unless the party assailing the validity of the second marriage proves that there had been no death or divorce — applies to the like presumption in favor of the legitimacy of Mrs. Staples. The estoppel, carried even to its extreme effect, does no more, at last, than bind appellee to the declaration that there had been a former valid marriage. The estoppel does not supply proof that there had been no divorce. It leaves the case without any proof or estoppel by pleading to show no divorce. It was doubtless error to have dismissed as to Maud Staples, but appellant was benefited by this, since, with her as coplaintiff, there would have been an element for damages, absent with her out. The most careful reading of the testimony leaves us unable to concur with learned counsel for appellant in their contention that the jury had no evidence on which to find that Beardsley [425] was not a trespasser, or that the confessed negligence of appellant was willful. Under the well settled rules of law, we think they might well have so found as to both propositions. It would be difficult to imagine negligence grosser or more criminally reckless and willful than that of the conductor of the freight train. We forbear further comment. Affirmed.