46 So. 51 | Miss. | 1908
delivered the opinion of the court.
The record shows that Pinkie Townes married Charley Diamond in Madison county on the 18th day of October 1894, and that Charley Diamond is still living in the county where this marriage was celebrated. It also shows that about ten years afterwards — that is to say, on the 24th day of December, 1904 —Pinkie Townes, then going under the name of Pinkie Diamond, married lake Tucker, and this second marriage also took place in Madison county. It is undisputed that Pinkie Diamond, who married Jalee Tucker in 1904, and Pinkie Townes, who married Charley Diamond in 1894, is one and the same person. Jake Tucker procured a policy of insurance in the Colored Knights of Pythias for the sum of $400, and, having died, Pinkie Tucker brings this suit to recover the amount of the insurance, claiming that she was his lawful wife at the date of his death. The Knights of Pythias deny liability to her on the policy, because they say she was not the wife of Jake T.ucker at the time of his death; that she was, at the time she married Jake Tucker, married to Charley Diamond; that she had never been divorced from Charley Diamond. The record shows that Pinkie Tucker only lived with her first husband, Charley Diamond, a short while after their marriage and left him — some of the witnesses testifying that after she left Charley Diamond she continuously lived and stayed in Madison county up to the time she contracted the second marriage; others testifying that she left Madison county and went to Greenville, Miss., for two or three years, returning then to Madison county, and continuing to live there up to the time of suit. It is conclusivley shown that no divorce was ever granted in Madison county, and Pinkie
On this state of facts the court gave the following instruction, viz.: “The court further instructs the jury that, even though you believe from the evidence that Pinkie Tucker was. married to Charley Diamond before she married Jake Tucker, you are hound to presume a divorce from Charley Diamond, unless it is conclusively proved hy positive evidence that no divorce-had been granted before the second marriage.” This instruction does not announce the law correctly. By it a higher degree-of proof is required than is ever required in a criminal case. It is universal law that the presumption in favor of 'the validity of a formal marriage is one of the strongest known to the law, because of its sacredness and public importance; but after all it is but a presumption of law, not conclusive, and therefore capable of being overcome hy such testimony as satisfies the mind of the jury that there is no valid marriage. With the strong-presumption raised hy the law in favor of the validity of marriage, an alleged marriage is not to be declared invalid except upon the clearest and strongest proof; but, when competent evidence has been submitted going to disprove marriage, the weight and sufficiency of that evidence is a matter for the jury, subject to the power of the court to set aside the verdict in any case-when their conclusion is not warranted hy the facts. Demonstration is never required, and when the jury are told that they
In the case of Schmisseur v. Beatrie, 147 Ill., 210, 35 N. E., 525, it is held that a person attacking a marriage on the ground that a former spouse of one of the'parties is living must show that the first marriage has not been dissolved. Still, he is not required to make plenary proof of such negative averment. In the case of Pittinger v. Pittinger, 28 Colo., 308, 64 Pac., 195, 89 Am. St. Rep., 206, it is stated that: “The presumption of the
. Any competent evidence which in the judgment of the jury is sufficient to overcome the very strong presumption which the law raises in favor of the validity of the marriage is sufficient to prove that no divorce had been granted. In this ease the territory in which these parties have lived was very much circumscribed. In the nature of things, and on the testimony in this record, considering the fact that the record shows, that the plaintiff and her former husband had only lived in two-
Instruction No. 3, given for plaintiff, is subject to still further criticism; but we do not deem it necessary to further discuss it, since the main objection to it is the same as that already pointed out in this opinion. The fact that Pinkie Tucker and Charley Diamond did not both continue to live in Madison county from the date that they were married until the time when Pinkie Tucker married Jake Tucker does not preclude the jury from reaching the conclusion, on the other testi
Reversed cmd remanded.