145 Ga. 363 | Ga. | 1916
The plaintiff sued the defendant railroad company for the alleged homicide of her husband. At the outset of the case she carried the burden of showing that she was the widow of the decedent, and that his homicide was one for which under the law there could be a recovery. As to the first proposition, if she showed that she had been married to the decedent, and nothing else appeared, this would make a prima facie case. If she herself proved that her marriage was illegal or had been dissolved, then she would destroy the prima facie case which might otherwise exist on this point. The defendant pleaded that a former suit had been brought by another woman as the widow of the decedent, which had resulted in a compromise verdict and the payment of the amount so awarded. In substance it set up that another woman than the plaintiff was the legal wife of the decedent at the time of his death, and therefore, in effect, that the plaintiff was not the widow of the decedent, which might have been either because of some invalidity in her original marriage with him, or because that marriage had been dissolved. There was no contention that the marriage of the plaintiff with the decedent was originally invalid, and therefore the contention of the defendant amounted to •asserting that while the plaintiff had been the wife of the decedent there had been a dissolution of that relation and a second valid marriage of the decedent to another woman, who was his lawful widow.
In Georgia a man can not have two lawful wives at the same time, by presumption or otherwise; and no presumption of innocence, or the like, can effect that result. As it appeared that both of these women had gone through a ceremonial marriage with the decedent, and it did not appear that there had been any third marriage anterior to one of them, one of these women must have been his lawful wife, and the other one not, unless the marriage to the
The rulings that a presumption of death from absence may yield to the presumption of innocence are not applicable in the present ease. No presumption of anybody’s death is set up in the present action in support of the validity of the second marriage and the dissolution of the first. If in this case any presumption of the death of the decedent were invoked^ it would yield to proof that he was in life when .the railway-train struck him; otherwise there would be no cause of action on the part of any person. Presumptions of death from absence may be rebutted, and yield to the fact of life when proved.
Upon the whole, the evidence on behalf of the plaintiff made out a prima facie case that she was married to the decedent and remained his wife until his death, although under a misapprehension, and under advice of counsel, she had married a second time before that event. As against this, the mere bald proof of a marriage in Alabama to another woman and of, living with her in Georgia at the time when his death occurred, would not be sufficiently conclusive to show that the first marriage had been dissolved and that the plaintiff was not the widow of the decedent, or to authorize the judge to direct a verdict in favor of the defendant railway company on that ground. It may be remarked that presumptions of dissolution of marriage, and the like, based on presumptions of innocence, have their use, but are not arbitrary rules of law to be applied in cases where the facts show them to be inapplicable. In this connection see notes to the cases of Pittinger v. Pittinger, 89 Am. St. R. 193, 206 (28 Colo. 308, 64 Pac. 195), and Smith v. Fuller, 16 L. R. A. (N. S.) 98 (138 Iowa, 91, 115 N. W. 912).
If the plaintiff made out a prima facie case showing she was the' widow of the decedent, there was sufficient evidence on the subject of negligence and liability to authorize the submission of the case to the jury. It follows that the direction of a verdict in favor of the defendant was error.
Judgment reversed.