Opinion
No. 33009.
January 24, 1938.
1. EVIDENCE.
A certificate of registrar of Arkansas Bureau of Vital Statistics, showing that named person had died at described time and place in Arkansas, was receivable in evidence under statute authorizing admission of foreign registers of deaths, as proof of the fact of death (Code 1930, section 1585).
2. NAMES.
Identity of name is prima facie evidence of identity of person, sufficing to shift burden of showing nonidentity to the other party, except where name is common, transaction is remote in time, inherent circumstances would point to a difference, or to allow presumption of identity would invalidate judgments or regularity of judicial proceedings.
3. DEATH.
Evidence that named white man left the state in 1931, and was traced to adjoining state, and certificate of registrar of vital statistics of adjoining state that a white man of identical name had died in adjoining state in 1932, held sufficient proof of man's death (Code 1930, section 1585).
APPEAL from the circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
A.M. Edwards, of Mendenhall, for appellant.
It will be seen from the evidence in this case that plaintiff below, appellee here, was married on November 21, 1930, to one H.R. Phillips; and as there was no competent evidence introduced to prove that appellee was ever divorced or that H.R. Phillips was dead at the time suit was brought in this case; and we submit that plaintiff thereby failed to show that she comes within the perview of Chapter 8, Code of 1930.
The plaintiff was allowed to introduce, by her attorney, Mr. J.P. Edwards, over the objections of defendant, what purported to be the death certificate which he obtained from the State Board of Health of the State of Arkansas. We submit that the introduction of this certificate was incompetent, and highly prejudicial to the interest of this defendant; also, the evidence given by the said witness was irrelevant and incompetent. Moreover, the death certificate absolutely fails to prove that the Harry R. Phillips, who died in the city of Pulaski, Arkansas, was the same man that married the plaintiff, Georgia Bridges, on the 21st day of November, 1930.
Section 1542, Code of 1930.
No doubt the signature of the health officer of the State of Arkansas weighed heavy in the mind of the jury in the trial of this case; and we submit that before the evidence of this witness in any form could possibly be competent, such witness' testimony would have to have procured as provided by Chapter 28 of the Code of 1930.
It is the rule of the common law as well as the statutory law that no evidence shall be admitted but what is or might have been under examination of both parties. King Berry, of Mendenhall, for appellant.
The testimony in this case clearly shows that appellee, Georgia Bridges, was a married woman, that several years prior to filing of this suit she was married to one Harry R. Phillips and that said Harry R. Phillips some time after said marriage had left her and that she knew nothing of his whereabouts. It was shown that she had never obtained a divorce from her said husband and there was no testimony showing that her said husband had obtained a divorce from her. The testimony did not show that seven years had elapsed since the date of his leaving her. It was contended that he was dead and a death certificate issued by the Bureau of Vital Statistics of the State of Arkansas was offered to show that he was dead, but we contend that even if that certificate was properly introduced, it only shows that a man named Harry R. Phillips had died in the State of Arkansas, and does not show or attempt to show that the decedent was the husband of the said Georgia Bridges. Over the objection of the appellant the testimony of Mr. J.P. Edwards was admitted to show that the said Harry R. Phillips named in said death certificate was the same person who married the said Georgia Bridges, but we contend that this testimony offered by Mr. Edwards was only hearsay testimony and was not properly submitted and should have been excluded. Without the testimony of Mr. Edwards, the only evidence of the death of the said Harry R. Phillips would have been said certificate, which of itself was utterly insufficient to show that he was the same man who married the appellee.
J.P. A.K. Edwards, of Mendenhall, for appellee.
As to the competency of the certificate of the Custodian of the Records of the Bureau of Vital Statistics of the State of Arkansas showing the death of Harry R. Phillips, we say that Section 1584, Code of 1930, settles this question in favor of appellee.
The paternity of the child and the question as to whether or not the plaintiff was a single woman were questions of fact to be settled by the jury, and both having been submitted under proper instructions and competent evidence, were determined in favor of the appellee, and we submit that no error in the lower court was committed, and therefore the judgment should be affirmed.
Argued orally by A.M. Edwards, for appellant.
A material issue in this case is whether, on July 23, 1936, a white man named Harry R. Phillips was living or dead. It is shown by the testimony that the particular person, using that name, had left this state early in the year 1931, and upon inquiry he was traced to the state of Arkansas. A certificate of the registrar of the Bureau of Vital Statistics of that state was introduced in evidence showing tht a white man of that identical name had died in Pulaski county, Ark., on October 2, 1932. This certificate was receivable in evidence under the express provision of section 1585, Miss. Code 1930, and as proof of the fact of death. 10 Ency. Ev., p. 733.
Appellant says, however, that this alone is not sufficient evidence that the person who died in Arkansas is the particular or identical person who was known as Harry R. Phillips here. The rule is, generally, that identity of name is prima facie evidence of identity of person, and is sufficient to shift the burden to the other party to show that the name was in fact of a different person. There are exceptions to the rule, as, for instance, where the name is a common one, or the transaction is remote in time, or where there are circumstances inherent in the evidence which would point to a difference in person, or where to allow the presumption of identity would operate to invalidate judgments or the regularity of judicial proceedings, and other exceptions, within sound reason, are to be found. 6 Ency. Ev., p. 913 et seq. No such exception is perceptible in this record.
The other assignments have been examined, and we find no reversible error.
Affirmed.