17 S.E.2d 709 | Ga. | 1941
1. The evidence would have supported a verdict for either the plaintiffs or the defendant.
2. Where a judge undertakes to state to the jury the principles of the Code, § 38-107, as to how the preponderance of evidence should be determined, it is his duty to instruct the jury fully and completely with respect thereto, so far as relevant to the case on trial, and omission to do so is erroneous.
3. Where the contest is over property rights between the next of kin of a man, and a woman claiming to be his widow, when the sole issue is as to the validity of a ceremonial marriage, which is attacked on the ground that at the time the ceremony was performed he was of unsound mind, it is error to charge the jury as follows: "I charge you, gentlemen, in connection with what I have just charged you, that the law is more regardful of nuptial — that is marriage — the word nuptial means marriage — than of ordinary contracts, and persons incapable of contracting generally may contract marriage."
4. In a contest of the character above stated, where there is no proof that after the marriage ceremony the parties lived together as man and wife, it was error to charge the jury as follows: "I also charge you, gentlemen, that marriage in this State is favored by the law. Concubinage is odious; that is, a man living with a woman commonly known as his woman and not his wife. When a man and woman are living together as husband and wife, the law will hold them as such even against strong probabilities that they are not."
5. In such a case as that indicated above, it was error to charge the jury as follows: "The burden is upon him or them who attack the marriage to show that it is invalid, by clear, distinct, positive, and satisfactory proof. The presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility."
6. The errors in the charge require the grant of a new trial.
The defendant named as Mrs. G. B. Pennington answered, that she had been misnamed by the plaintiffs, that her name was Mrs. Pearl Pennington Hamilton, for that she married J. G. Hamilton before his death. She denied that Hamilton was mentally incapable of contracting the marriage, and she claimed that she was the proper beneficiary of the insurance certificate.
Woodmen of the World answered, admitting liability of the proper beneficiary or beneficiaries, and praying that it be allowed to pay the money into the registry of the court and be discharged. It was so done and ordered, and the case proceeded solely as between the parties claiming the beneficial interest under the certificate. The jury rendered a verdict in favor of Mrs. Hamilton, and the court entered judgment to the effect that her marriage to Hamilton was a valid and binding contract, and that she was his lawful heir. The plaintiffs' motion for new trial was overruled, and they excepted.
1. The brief of counsel for the plaintiffs contains a statement that it is not contended that the verdict is without any evidence to support it, and that the general grounds are not insisted on. It is the contention of counsel for the defendant that although there was evidence pro and con as to Hamilton's mental condition on days other than the one on which the marriage took place, there is nothing *196
to show lack of mental capacity at the time of the marriage ceremony. Compare Brown v. Kendrick,
Since under the evidence the jury would have been authorized to find either for or against the complainants, the criticisms as to the charge must be examined to determine whether or not they afford ground for the grant of a new trial.
2. There was under the pleadings but one question for the jury to pass upon, to wit, the mental capacity of Hamilton to contract marriage. All the testimony was directed to that issue only. Eighteen witnesses were sworn for the plaintiffs, they admitting *197
that a ceremonial marriage had taken place. Hamilton v. Bell,
There was evidence to show that Hamilton suffered a severe stroke of paralysis on July 31, 1940; that thereafter there was no control of his bowel movement; that he lay in bed practically helpless; that he was married on August 10, 1940, and died four days thereafter; that although his nearest kin visited him during his last illness — his sister four or five times before the ceremony was performed, it does not appear that any of them were informed that he contemplated getting married, or that thereafter he caused *198 any of them to be notified of it; that theretofore the other party to the marriage heard the attending physician "advise his people, if he had any relatives that he wanted to see, to send for them." These were matters that the jury might have deemed sufficient, together with other testimony, to satisfy them that he was physically unfit to perform the obligations which the contract of marriage imposes, and that the fact that he did, in that condition, enter into a ceremonial marriage in the circumstances, was itself some evidence that at that particular time he was mentally unsound, regardless of the opinion testified to by some of the witnesses. The marriage may have been the act on his part of a man of sound mind, and a natural culmination of a love affair of at least several months duration. We are here merely ruling that under the proofs submitted, and all reasonable deductions to be drawn therefrom, the jury were not compelled as a matter of law to have so found.
3. Complaint is made of the following extract from the charge of the court: "I charge you, gentlemen, in connection with what I have just charged you, that the law is more regardful of nuptial — that is marriage — the word nuptial means marriage — than of ordinary contracts, and persons incapable of contracting generally may contract marriage." We are of the opinion that this charge should not have been given. This is a contest over property rights between the next of kin of a man, and a woman claiming to be his widow, when the sole issue is as to the validity of a ceremonial marriage, which is attacked on the ground that at the time the ceremony was performed he was of unsound mind and mentally incapable of contracting marriage. This record does not present a case where a man was twice married and the children of the first marriage were claiming the whole estate and contending that the second marriage was void and the issue thereof were bastards for the reason that the man had been divorced from his first wife, on account of whose guilty conduct the divorce was obtained, which under the then existing law prohibited his remarriage. Such an instance was that dealt with in Park v. Barron,
4. Grounds 3 and 4 are based on the following excerpts from the judge's charge: "I also charge you, gentlemen, that marriage in this State is favored by the law. Concubinage is odious, — that is, a man living with a woman commonly known as his woman and not his wife. When a man and woman are living together as husband and wife, the law will hold them as such even against strong probabilities that they are not." The opinion of this court in Murchison v. Green,
5. Complaint is made that the court charged the jury that "The burden is upon him or them who attack the marriage to show that it is invalid by clear, distinct, positive, and satisfactory proof;" and that he charged the jury that "The presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility." Both of the above are also taken from the opinion in Murchison v. Green, supra. The comments already made on that case will not be repeated. In support of the statement just above made, Mr. Justice Cobb cited only Megginsonv. Megginson, 21 Oregon, 387 (28 P. 388, 14 L.R.A. 540). That decision dealt with the attack on the legality of a marriage only because of the claim that the ceremony was performed by a person assuming to act as a minister of the gospel, when in fact he was not such. The proof showed that he was a devoutly religious man, who sometimes preached, and was generally known as a preacher. After the marriage there was cohabitation, under the belief of the parties that they were lawfully married, and children were born to the couple. The notes to the reported case go no further than to collect many cases which dealt with the presumptions that flow from a marriage ceremony, and the opinion *201 in the Oregon case did not declare that the burden is on one who attacks such marriage as invalid to show by clear, distinct, positive, and satisfactory proof its invalidity, except in instances where there has been a former marriage by a person assuming to act in the capacity of a minister of the gospel, followed by cohabitation under a belief that they were legally married. Immediately after the sentence in the Murchison case that the presumption as to the validity of the marriage can only be negatived by disproving every reasonable possibility, this was said: "The status of the woman is involved, as well as the legitimacy of children, and every reasonable presumption must be indulged which will relieve the woman of the charge of being a concubine and her children from being declared bastards."
Whether or not the statements above referred to from the opinion in the Murchison case were obiter, or, if obiter, whether sound or not, we need not decide, since, under the record in the instant case, the sole question before the jury was as to the mental capacity of Hamilton to contract the marriage; and in our judgment there is nothing to take the case out of the general rule that in a civil case the plaintiff has only the burden of establishing his case by a preponderance of the evidence. Code, § 38-106. In Medlock v. Merritt,
6. On account of the errors in the instructions to the jury, the motion for new trial should have been sustained.
Judgment reversed. All the Justices concur. *202