New Amsterdam Casualty Co. v. Seals

Court of Appeals of Georgia

New Amsterdam Casualty Co. v. Seals

190 S.E. 870, 55 Ga. App. 569, 1937 Ga. App. LEXIS 425

CourtCourt of Appeals of Georgia

DecidedMarch 4, 1937

Docket26003

StatusPublished

Cited by2 cases

This text of 190 S.E. 870 (New Amsterdam Casualty Co. v. Seals) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

New Amsterdam Casualty Co. v. Seals, 190 S.E. 870, 55 Ga. App. 569, 1937 Ga. App. LEXIS 425 (Ga. Ct. App. 1937).

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Opinions

Felton, J.

1. Where a man contracted a second marriage while his first wife was still alive, it will be presumed in favor of the validity of the second marriage that the first marriage was legally dissolved by divorce before the second marriage was entered into; and one who asserts the invalidity of the second marriage must show that there has not been any divorce. Brown v. Parks, 173 Ga. 228 (160 S. E. 238); Murchison v. Green, 128 Ga. 339 (57 S. E. 709, 11 L. R. A. (N. S.) 702); Ward v. Ward, 24 Ga. App. 695 (102 S. E. 35).

2. Where proof of a negative is essential to the existence of a right, the burden of proving such negative is properly placed on the party claiming the right. Where, therefore, the right of a claimant to property of an intestate rests on the supposed illegality of a marriage, the claimant must, before he can make good that right, by proper proof remove every presumption of the legality of the second marriage. Brown v. Parks, supra.

[570]*570Decided March 4, 1937. Rehearing denied March 30, 1937. Bussey & Fulcher, for plaintiffs in error. Henry J. Hefernan, Albert G. Ingram., contra.

3. An award in favor of the first wife of the deceased insured was made by the industrial commission, and was affirmed by the superior court on appeal. It appeared from the record that there was a subsequent ' marriage between the deceased and another woman, and th,e only evidence introduced to overcome the presumption of the validity of the second marriage was as follows: '“Q. You are the wife of Henry B. Seals, deceased? A. Yes sir. Q. How many years have you been mar•ried? A. About twenty. Q. You got married about twenty years ago? A. Yes sir.” In the absence of positive testimony that a divorce between her and the deceased had not been granted, the evidence was insufficient to overcome the presumption of the validity of the second marriage, and the judgment affirming said award was error.

Judgment reversed.

Sutton, J., concurs. Stephens, P. J., dissents.

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Felton, J.

1. Where a man contracted a second marriage while his first wife was still alive, it will be presumed in favor of the validity of the second marriage that the first marriage was legally dissolved by divorce before the second marriage was entered into; and one who asserts the invalidity of the second marriage must show that there has not been any divorce. Brown v. Parks, 173 Ga. 228 (160 S. E. 238); Murchison v. Green, 128 Ga. 339 (57 S. E. 709, 11 L. R. A. (N. S.) 702); Ward v. Ward, 24 Ga. App. 695 (102 S. E. 35).

2. Where proof of a negative is essential to the existence of a right, the burden of proving such negative is properly placed on the party claiming the right. Where, therefore, the right of a claimant to property of an intestate rests on the supposed illegality of a marriage, the claimant must, before he can make good that right, by proper proof remove every presumption of the legality of the second marriage. Brown v. Parks, supra.

[570]*570Decided March 4, 1937. Rehearing denied March 30, 1937. Bussey & Fulcher, for plaintiffs in error. Henry J. Hefernan, Albert G. Ingram., contra.

3. An award in favor of the first wife of the deceased insured was made by the industrial commission, and was affirmed by the superior court on appeal. It appeared from the record that there was a subsequent ' marriage between the deceased and another woman, and th,e only evidence introduced to overcome the presumption of the validity of the second marriage was as follows: '“Q. You are the wife of Henry B. Seals, deceased? A. Yes sir. Q. How many years have you been mar•ried? A. About twenty. Q. You got married about twenty years ago? A. Yes sir.” In the absence of positive testimony that a divorce between her and the deceased had not been granted, the evidence was insufficient to overcome the presumption of the validity of the second marriage, and the judgment affirming said award was error.

Judgment reversed.

Sutton, J., concurs. Stephens, P. J., dissents.

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190 S.E. 870, 55 Ga. App. 569, 1937 Ga. App. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-amsterdam-casualty-co-v-seals-gactapp-1937.

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