Rudulph v. Brown

103 S.E. 251, 150 Ga. 147, 1920 Ga. LEXIS 87

• Court: Supreme Court of Georgia
• Decided: May 11, 1920
• Docket: No. 1554
• Status: Published

Opinion

Hill, J.

(After stating the foregoing facts.)

1. There are but two special grounds of the motion for new trial. The first complains that the court erred in permitting a witness for the defendant, D. B. Cooner, to answer the following question of defendant’s counsel, over objection: “In what condition, with regard to wedlock or marriage, were Jack Price’s [meaning Henry Mack Price] father and mother living at the time he was born?” the witness answering, “Living there as man and. wife.” The objection to this testimony was that there was no wedlock among slaves before the war; and that the witness could only state the facts. It is insisted that it was for the jury to determine whether the state of facts recited by the witness consituted wedlock or showed that they were living together as husband and wife, and that the relation of these slaves at the time of the birth of the child in question was for determination entirely by the jury. We do not agree with this contention. We think it was competent for the witness to testify to the fact that the father and mother of Henry Mack Price (who were slaves) were living together at the time testified to by him, as husband and wife. The Civil Code (1910), § 2180, provides: “Every colored child born before the 9th day of March, 1866, is hereby declared to be the legitimate child of his mother; but such child is the legitimate child of his colored father only when born within what was regarded as a state of wedlock, or when the parents were living together as husband and wife.” The testimony objected to was competent to show that the parents of Henry Mack Price were living together at the time inquired about, as husband and wife.

2. The second special ground of the motion for new trial complains of the following charge of the court: “Now, the presumption of law is, gentlemen, that life continues for seven years. ■After the lapse of seven years there is no presumption of continuance of life. • The law presumes that it continues for seven years, but no longer. If you should find that the other child, soon after the war, or during the war, or before the war, or sometime thereabout, left this part of the country and has not been heard of since, it is the opinion of the court that the presumption would be that such child was no longer in life, or the presumption of life would not continue for longer than seven years after that time- — the last time such child was heard of in the country from which he may have gone.” It is argued that this charge was an erroneous statement of the law of presumption of death by absence; that there was no evidence that the child referred to in the charge had not been heard from within seven years by those who would be most likely to hear from him, at the place to which he had moved in another State. The charge complained of was inappropriate to the facts of the case, and was erroneous and calculated to mislead the jury. The evidence tended to show that Henry Mack Price, his mother, and one other son of Jack Price had moved to a. certain point in Florida in 1859, and that the other son and mother had not been heard from since; but the evidence nowhere discloses the fact that inquiry was made at the point in Florida to which these people had moved from Georgia, in order to ascertain whether they were living or dead, nor whether they had ever been heard of from that point by those who would be most likely to hear, and, if so, when; nor whether Jack Price left other legitimate children or heirs at law. In Hansen v. Owens, 132 Ga. 648 (64 S. E. 800), this court held: “Where it is sought to raise a presumption of death, by reason of the absence of a person from his known place of residence or domicile for seven years without being heard from, by the testimony of a witness who merely makes inquiry to lay the foundation for such proof and who himself is not cognizant of 'any of the facts, the evidence must show that there has been an unsuccessful effort to find the absent person by séarch and diligent inquiry at his last known place of residence and among his relations or acquaintances; if any, and it must appear that the absent party has not been heard from for seven years or more by those who would be most likely to hear from him. Evidence of absence of a person from his original place of residence' will not raise the presumption of death, where it appears that he has moved to another placó and there located.” In the opinion it 'is said: “A presumption of death may arise where a person has been absent from his known place of residence or domicile for seven years without being heard from. In order to show that he''has not been heard from by a witness who merely makes inquiry for the purpose of making proof which will raise a presumption of death, the evidence must show that there has been an unsuccessful effort to ñnd the absent person by search and diligent inquiry at his latest known place' of residence and among his relations, or acquaintances, if any; and it must appear that the absent party has not been heard from within seven years by those who would be most likely to hear from him. Mere absence' is not sufficient to raise the presumption. A person may be absent from his home or from his last place of residence in 'this State 'for many years on business or for other sufficient reason, but may have been heard of by his family or friends. Or a person may move from one locality and establish a residence or domicile in another. Evidence of absence from his original place of residence will not raise the presumption of death, where it appears that he has moved to another place. Gray v. McDowell, 6 Bush (Ky.), 475; Keller v. Stuck, 4 Redfield (N. Y.) 294. See, on the general subject, Cofer v. Flanagan, 1 Ga. 538; Adams v. Jones, 39 Ga. 479; Watson v. Adams, 103 Ga. 736 (30 S. E. 577); 13 Cyc. 301.” “Mere proof that a person moved away to another State and has not been heard from, without proof of absence from the new domicile, will not raise a presumption of death.” Barr v. Chapman, 11 Ohio Dec. Beprint, 862; 30 Ohio L. J. 264. “Where a person leaves one State and takes up his residence in another, it must be shown that he has been absent and unheard of in the latter place for seven years, to raise the presumption of death.” Wright v. Jones, 23 N. D. 191 (135 N. W. 1120). For other cases to the same effect see Marquet v. Ætna Life Ins. Co., 128 Tenn. 213 (159 S. W. 733, L. R. A. 1915B, 749, notes, Ann. Cas. 1915B, 677), where the Supreme Court of Tennessee held: “To raise a presumption of death of one from seven years’ absence, inquiry must be made at the last known domicile of the absentee; and where he has become estranged from his family and removes to a town different from its place of residence, inquiry at the latter place is not sufficient.” And see Modern Woodmen v. Ghromley, 41 Okla. 532 (139 Pac. 306, L. R. A. 1915B, 728, notes, Ann. Cas. 1915C, 1063).

There is no express statutory provision in this State making absence from the State for seven years the ground of the presumption of death. Some of the States have such statutes, such as Kentucky, Missouri, and West Virginia. Modern Woodmen v. Ghromley, supra; 17 C. J. 1170. The only provision in our code with reference to such presumption is as follows: “Other presumptions of law, such as of innocence, and in some cases of guilt, of continuance of life for seven years, of a mental state once proved to exist, and all similar presumptions, máy be rebutted by proof.” Civil Code (1910), § 5740. There being no statutory provision in this State, therefore, merely making absence from the State the ground of the presumption, the common-law rule must be applied, which is as ruled in Hansen v. Owens, supra. We conclude from the foregoing that the charge of the court was calculated to mislead the jury into believing that' a mere absence for more than seven years from this State, without more, would raise a presumption of the death of the absent son and wife of Jack Price. This error will require a new trial.

3. As the case is returned for another hearing, we express no opinion as to the sufficiency of the evidence to support the verdict.

Judgment reversed.

All the Justices concur.