The opinion
On Motion for Rehearing
Complaint is made, in the motion for a rehearing, of language used by us in our opinion, beginning near the bottom of page 11, [ 169 S.W.2d 729 ], wherein, in discussing the testimony adduced by the plaintiff for the purpose of establishing cohabitation between Jennie Ho-we-ah and Tom Burnett, prior to the time Lena was conceived, we said: “We submit that this testimony is insufficient to raise the issue of cohabitation between Burnett and Jennie ‘prior to June, 1904’, or to raise the issue of the general reputation as to these persons being husband and wife.”
A careful reading of our opinion will disclose that we held that the testimony adduced does not support these two most material and indispensable issues on which the plaintiff must rely.
In order to meet the complaint and eliminate any question that might be raised because of our having used the word “insufficient”, we here and now hold that there is no evidence of probative force tending to establish cohabitation between these persons, prior to the conception of Lena Mc-Arthur, and none such tending to establish a general reputation as to such persons being husband and wife, prior to such conception.
Like complaint is made, in the motion, of the language used by us in our opinion wherein we discussed the testimony adduced to establish a general reputation existing as to Burnett and Jennie being husband and wife, in which we said: “Without attempting to quote from or give the substance of the testimony of all of the other witnesses, relied upon by appellant, we are of opinion that such testimony is insufficient to raise the issue of ‘general repute’ as to the status of Burnett and Jennie Ho-we-ah, as such repute is defined by the Oklahoma decisions.” (Opinion, page 9 [ 169 S.W.2d 728 ]).
To meet this complaint and eliminate any question that might be raised because of our having used the word “insufficient”, we here hold that there is no evidence of probative force tending to establish a general reputation as to such persons being husband and wife, at any time, as such general repute is defined by the decisions of the State of Oklahoma.
The plaintiff having wholly failed to establish a prima facie case by the introduction of evidence of probative force touching upon the issues of cohabitation prior to the conception of Lena and of a general reputation existing that Burnett and Jennie were husband and wife, it may not be out of place for us to point, out that the defendants introduced oral and written and public record evidence wholly refuting the allegations and claims of the plaintiff; all of which comes from disinterested witnesses. It is undisputed that in the early part of 1904 Jennie went to work for Walter Silcott at a wage of $2 per week; that one Anna M. Deyo was an assistant field matron and that among her duties was to see after the morals of the Indian girls, and on December 12, 1904, after Jennie’s condition became apparent, she wrote a letter to Col. Randlett, the Indian agent, telling him that Jennie had been betrayed and that she was living with her grandmother, who was dying with tuberculosis. Col. Randlett replied immediately, advising that Jennie be brought before an officer and put under oath to tell who, whether an Indian or white man, was guilty of her down fall.
It is apparent from this evidence that there, in the very community in which Jennie lived, at that time, a “general repute” as to Jennie and Burnett being husband and wife was not only not existent but simply impossible.
It is undisputed that after Lena was born, on March 29, 190S, Jennie, as was required of her as an Indian and ward of the United States government, had Lena enrolled, and that Jennie refused to tell the name of Lena’s father, and that, on the Indian Rolls, which were made under the direction of the Secretary of the Interior, instead of the name of a known father, there was entered on the Roll, “father unknown”.
The Federal laws — Section 163, 25 U.S.C.A. — provide that these rolls shall be conclusive as to the ages of those enrolled and as to the quantum of Indian blood in each enrollee.
These Rolls show that the extent of Indian blood as to Lana could not be ascertained because her father was “unknown”.
*731 It is undisputed that Jennie married one Jesse Davis, on February 4, 1911, and that she lived with Davis until she died, on November 30, 1912, and that then Lena went to live with George and Mary Davis, a brother and sister-in-law of her step-father; and in 1913, a contest arose between George Davis and wife on the one side, and Jesse Davis on the other, on petition for the adoption of Lena. No adoption could be lawfully had without the consent of the Indian agent, and such agent wrote to one Dr. Louis A. Milne, who was at such time the physician for the Indians, and requested the doctor to make an investigation. Doctor Milne replied by letter, advising that Jennie became pregnant while working for Silcott, and that Silcott had Jennie make an affidavit to the effect that a certain white man (not Burnett) was the father of Lena. In the doctor’s letter he advised that George and Mary Davis be given the child, so she would have a proper environment for her protection and to prevent her from going “the same way as her mother”.
The very next year, court proceedings were had to determine the ownership of the allotments of Jennie and her grandmother, and the adoptive parents, George and Mary Davis, the step-father, Jesse Davis, and five Indians all swore that Jennie had never been married to any one except to Jesse Davis, and that Lena was an illegitimate child.
Bear in mind that these records were made by persons seeking the good of Lena, and we can find no incentive to make a false statement or record.
We did not discuss this portion of the record, in our opinion, because we deemed it proper to discuss the evidence most favorable to the plaintiff, in discussing the correctness of the trial court’s judgment rendered non obstante veredicto, but we are frank to say here and now that these records, made many, many years before this suit was filed — records that could not have been made in contemplation of any such suit as is before us, and made by what we consider disinterested persons — wholly refute any claim of cohabitation and any claim-of a common law marriage, based upon general repute.
Gur holding is bottomed on the failure of appellant to introduce evidence of probative force tending to establish the essential facts upon which a recovery may be had.
The motion is overruled.