Blanks v. Southern Railway Co.

Calhoon, L, delivered the opinion of the court. Daniel Blanks was run over and killed by an engine of the Southern Railway Company while he was in the service of that company, and Margaret Blanks sued the company, claiming to be his widow. A separate action for damages was brought by his heirs. The company admitted liability, and the parties to both actions agreed that, if Margaret recovered in her action, the recovery should be $1,250. The cotot below peremptorily instructed the jury to find a verdict for defendant company, and the only question is whether she was the wife of the deceased, and this must be determined on her own testimony. Her only pretense of wifehood in her relations with Daniel is based on her claim that there was a valid common law marriage between them before the Code of 1892, requiring formal celebration, took effect. Her story is that she, at the time when she had never been married, though she was the mother of a bastard child, some twenty years ago, was married to a man who, inasmuch as he was not the father of the bastard, we may assume, on matrimonial concerns, was free from petty scruples. His name was Lawson Parker. As to this marriage We quote from plaintiff’s testimony as shown in the record: “Q. Were you ever married legally? A. I don’t know, sir. Q. Didn’t you say you were maried to Lawson Parker ? A. I had a man by that name. Q. Were you legally married to him? A. I don’t know. He and a preacher were there, by the name of Hamp [708] Crawford. Q. Did he perform a ceremony? A. I don’t know, sir. He said something. Q. Did he pronounce you ■man and wife? A. I don’t know, sir; but we went together ■under that head.” She says this marriage with Lawson was at her father’s house. Pursuant.to that maneuver, Maggie and Lawson lived together “under that head” — that is, under the ■head of husband and wife — for, as she says, two or three years, when Lawson, weary of well-doing, threw off the connubial yoke and of his own motion, without disturbing the courts, left for parts unknown. Something more than a year after his departure, a singular courtship occurred. She says that she was sitting in her door, when Daniel Blanks, the deceased, who was a •perfect stranger, whom she had never seen before, came up, and she says: “He preferred he was lonely. I was sitting in the ■ door there by mysjelf, and he asked me if I was lonely, and I .preferred yes, I was lonely, and he asked then if I would like to be his wife, if I would be the,mother of his child, and I said I thought I could, and he asked me if I could live in his house and treat him adjustably, and I told him I thought I could. Q. Did you tell him in what way you wanted to live ? A. As his wife. .■That is -the way I went to him. I did not reconsider myself to have any husband after Lawson left me, and I was living there .from hand to mouth, and I wanted a husband, and he said he would be a husband to me, and I said as I was a woman I would accomplish to be his wife, and I went with him.” On this primitive, prepluvial agreement they lived together for many •years, and up to the time of Daniel’s death. But after about a .year of their cohabitation there .was an unfortunate episode. ■ Lawson Parker turned up! He appeared at Maggie’s new • home in quite a violent humor, and proceeded to abuse and beat her, without any interference from Daniel, so that she had him arrested and put under bond to keep the peace, and then he left again, and has been seen no more, and Daniel and Margaret continued to live together for ten years or more, until Daniel [709] was killed by the railroad train. We cannot hold that she was ■Daniel’s wife. In this case the precise issue joined and the only issue tried is whether she was his wife. Since she claimed as such, and since this is specifically denied,- the burden is-on her to show the legal marital relation. This burden she has not discharged. By her own showing, Lawson Parker was alive when she commenced her cohabitation with Daniel Blanks. This, therefore, • was unlawful when it commenced, and continued to be so. No adjudication conflicts with our conclusion on the facts of the case before us, even if we held — which we do not — that the arrangement with Blanks, as detailed, would have been, but for Margaret’s previous marriage, a valid common law marriage. Affirmed.