| Ark. | May 3, 1920
(after stating the facts). It is claimed that the court erred in instructing the jury as follows:
“If you find from the evidence in this case that John Henry Boyal was lawfully married to this woman, the plaintiff, to whom it is sought to show the benefit was assigned, and that it was properly assigned as required by the terms of the policy, then you will find for the plaintiff the amount of the policy. But if you find from the evidence that John Henry Boyal was previously married to another worn an, and that there was no proof to show that the relationship had been changed but that the relationship continues, and if it did continue down to the marriage with this woman, then that marriage was a bigamous marriage, although contracted under the terms of the law. If you find that state of the ease your verdict will be for the defendant.”
The plaintiff produced her marriage certificate showing that she was married to the insured in 1915, and, also testified that the marriage ceremony was performed in the courthouse at New Lewisville, Lafayette County, Arkansas. This court has held that if a marriage has been established by evidence it is presumed to be regular and valid and that the burden of proof is upon the party attacking it. Estes v. Merrill, 121 Ark. 361" date_filed="1915-12-13" court="Ark." case_name="Estes v. Merrill">121 Ark. 361, and McGaugh v. Mathis, 131 Ark. 221" date_filed="1917-11-19" court="Ark." case_name="McGaugh v. Mathis">131 Ark. 221.
In the application of this rule to the present case it is claimed by counsel for the plaintiff that the instruction given by the court is erroneous in that it placed upon the plaintiff the burden of proving that the first marriage had been annulled or that the parties to it had been divorced. In making this contention they first point to the fact that the first part of the instruction uses the words, “lawfully married.” They construe this to mean that the court placed upon the plaintiff the burden of showing that her marriage to John Henry Boyal was not a bigamous one. We do not think the instruction is open to this objection. The burden of proof in the whole case was upon the plaintiff, and the court evidently meant that it devolved upon her to show that she was married to the insured in accordance with the statutes of the Staté; or, in other words, that a ceremonial marriage had been performed as required by the statute.
Again it is insisted that the concluding part of the instruction placed upon the plaintiff the burden of showing that her marriage to the insured was not a bigamous one.
We do not think the instruction susceptible of the construction placed upon it by counsel for the plaintiff. The first part of the instruction submitted the theory of the plaintiff to the jury, and the purpose of the concluding part of the instruction was to submit the defendant’s theory of the case to the jury: This is shown by the language used as well as by the fact that it commences with the word ‘ ‘ but. ’ ’ This indicates that, after submitting to the jury the plaintiff’s theory of the case, the court intended to submit to it the defendant’s theory. If the plaintiff desired a more specific instruction on the question, her counsel should have asked one. Not having done so the plaintiff is not now. in an attitude to complain. The instruction given by the court was drawn somewhat loosely, but it submitted to the jury the respective theories of the parties to the lawsuit.
Therefore the judgment will be affirmed,