Allen v. McIntosh Lumber Co.

77 So. 909 | Miss. | 1918

Etheidge, J.,

delivered the opinion of the court.

This a suit brought by Hattie Allen and her children for injuries to Jobe Allen, her husband and the father of. the children, resulting in his death. Suit was filed against the McIntosh Lumber Company and the Southern Paper Company. It appears that the McIntosh Lumber Company entered into a contract with the Southern Paper Company, in which the McIntosh Lumber Company was to furnish the Southern Paper Company slabs from its saws and furnish the motive power for the operation of the slasher saw and to convey the slabs from the saw of the McIntosh Lumber Company to the" slasher saws of the paper company. Jobe Allen was employed by the McIntosh Lumber Company in operating the carriage or roller that conveyed the lumber from the sawmill to the slasher saws, and was injured’ by a slab being thrown from the slasher saw back to where he was working, striking him on the head. It appears that in erecting the slasher saws no fender or guard was placed between the slasher saw and the place where Jobe Allen worked, and that snch fender would have prevented the injury. It further appears in the record from one of the witnesses for the defendant that the slabs when struck by the slasher saws were liable to be thrown in any direction. It further appears that one Parker had been contracted with by the paper company to operate the slasher saws and to deliver the slabs at a designated point at so much per cord, he to furnish his own labor. The details of the contract between the paper company and Parker is not in the record. There was no written contract, but a verbal contract, and the full details and understanding was not developed satisfactorily. -The defendants also defended upon the ground that the plaintiffs were not the lawful wife and children of the deceased, and not therefore entitled to sue for any injuries to him. At the conclusion of the'plantiffs’ evidence the court granted a peremptory instruction for the Southern Paper Company and submitted the case to the jury as to the McIntosh Lumber Company. The proof of the plaintiffs shows clearly and unequivocally that Jobe Allen married Hattie Allen, and that they lived together as husband and wife and raised a large family. The proof for the-plaintiffs also showed that Jobe Allen had a brother named Joe Allen, who married Adeline Hotten in 1889. There were two witnesses for the defendant, who testified that Jobe Allen was the man that married Adeline Hotten, and that they were present’ on the occasion of the marriage. The defendants introduced in evidence the marriage license, with return of the minister certifying that he had joined in matrimony Joseph Allen and Adeline Hotten. This marriage license was objected to, and there was no proof that Jobe Allen was the party who procured this license. The defendants also introduced in evidence a bill for divorce filed by Adeline Allen against Joseph Allen in the chancery court of Jackson county, Miss., at the August term, 1896. This bill was filed on the 11th day of May, 1896, and the bill alleges that Adeline Allen was married to Joseph Allen in the month of December, 1888, in Jackson county, and that the place of residence of Joseph Allen was unknown. A decree was granted, reciting proof of publication, but no publication appears in the record. A decree grants a divorce to Adeline Allen and Joseph Allen. This marriage license and bill and decree for divorce1 was objected to by the plaintiffs, and at the close of the evidence the court was moved to strike the same from thé record, but the court overruled the objections and refused to strike the said papers from the record, and submitted the question to the jury as one of the issues in the case.

We are unable to say that the submission of this question .did not contribute to the finding for the defendants. It may have been the sole reason for so finding. We think it was error to offer this marriage license and this bill for divorce in evidence. How a bill for divorce could even tend to prove the issue in this case we are unable to see. It appears from the testimony of the attorney who filed the bill that Jobe Allen was living in the county at the time of the filing of the suit, and that he knew Jobe Allen, and that Jobe Allen was not the man named as the defendant in the suit. There was no proof whatever that Jobe Allen vms served with process, or that he was the party intended as the defendant in said divorce suit. In Alabama & V. Ry. Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660, this court decided that, where a party is shown to have been married to fine party and subsequently married to another party, a divorce would be presumed in favor of the validity of the last marriage. So but for the introduction of this alleged bill for divorce tlie court would have been bound to instruct the jury on this record that the plain-lifts were entitled to bring the action as the wife and children of the deceased. This instruction was requested by the plaintiffs and refused by the court presumably upon the theory that the bill for divorce and decree there rendered was competent evidence to establish the fact that no divorce had been obtained at the time of the marriage between the deceased and plaintiff Hattie Allen. For these errors the judgment must be reversed as to the defendant McIntosh Lumber Company.

We think the plaintiff failed to show the nature of the contract between the Southern Paper Company and Parker, and that it was the duty of the plaintiff to develop the terms of this contract, and that for the reason that it does not satisfactorily appear that tlie judgment rendered for the Southern Paper Company was error, judgment as to that company will be affirmed.

Reversed’ and remanded as to the defendant McIntosh Lumber Company.

Reversed and remanded.