112 S.W. 282 (Mo.App. 1908), Davis v. Stouffer

• Citation: 112 S.W. 282, 132 Mo.App. 555
• Opinion Judge: ELLISON, J.
• Party Name: ELLA PHILLIPS DAVIS, Respondent, v. R. W. STOUFFER, Administrator, etc., Appellant
• Attorney: T. H. Harvey, J. C. Rieger and V. V. Huff for appellant. Ernest D. Martin and Robert M. Reynolds for respondent.
• Case Date: June 29, 1908
• Court: Missouri Court of Appeals

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112 S.W. 282 (Mo.App. 1908)

132 Mo.App. 555

ELLA PHILLIPS DAVIS, Respondent,

v.

R. W. STOUFFER, Administrator, etc., Appellant

Court of Appeals of Missouri, Kansas City

June 29, 1908

Appeal from Saline Circuit Court.--Hon. Samuel C. Davis, Judge.

Judgment affirmed.

T. H. Harvey, J. C. Rieger and V. V. Huff for appellant.

(1) The finding and judgment of the court were against the law. There being no sufficient evidence of cohabitation and reputation, such finding and judgment could only be on the theory that a marriage contract, per verba de praesenti, without more, was a sufficient common law marriage. This is not the law. Topper v. Perry, 197 Mo. 546 et seq.; State v. Bittick, 103 Mo. 191; Dyer v. Brannock, 66 Mo. 391; State v. Kennedy, 106 S.W. 58; Cargile et al. v. Wood et al., 63 Mo. 513; Reaves v. Reaves, 2 L. R. A. (N. S.), 361; Maryland use of Markley v. Baldwin, 112 U.S. 494. (2) The finding and the judgment of the court were against the evidence. There was no evidence of a marriage contract per verba de praesenti. (1) There was no mutual agreement between the parties in the present tense, at the time the marriage was alleged to have occurred. (2) The words used by the parties at the time of the alleged contract were not sufficient to create a contract. (3) There was no promise on the part of the plaintiff to become the wife of the deceased. (4) The evidence of John Phillips, the only pretended witness to the alleged contract, shows that the language used by the deceased at the time of the alleged marriage was narrative and not contractual. Topper v. Perry, 197 Mo. 546; McKenna v. McKenna, 180 Ill. 577; State v. Cooper, 103 Mo. 273; State v. Hansbrough, 181 Mo. 353. (3) "When the consent to marry is manifested by words de praesenti, a present assumption of the marriage status is necessary." Topper v. Perry, 197 Mo. 546; Cartwright v. McGown, 121 Ill. 388; State v. Cooper, 103 Mo. 274; Dyer v. Brannock, 66 Mo. 391; Adair v. Mette, 156 Mo. 496; State v. Kennedy, 106 S.W. 57; Maryland v. Baldwin, 112 U.S. 494; Reaves v. Reaves, 2 L. R. A. (N. S.) 353. (4) To raise the presumption of a marriage at the common law three essential facts must concur (1) cohabitation, (2) acknowledgment or recognition of the marriage relation by the parties, (3) and the reputation of being man and wife in the community. The cohabitation must be marital and not meretricious (Cargile v. Wood, 63 Mo. 513, et seq.); it must be continuous and not occasional (Imboden v. Trust Co., 111 Mo.App. 235); and must be accompanied by a recognition of each other as man and wife before the public, so as to create an undivided reputation of the marriage of the parties. 26 Cyc., 873, et seq., and cases cited; Cargile v. Wood, 63 Mo. 513, et seq.; State v. Hansbrough, 181 Mo. 353; Topper v. Perry, 197 Mo. 548. (5) The finding of the court was against the weight of the evidence. While ordinarily the appellate courts will not interfere with the discretion of the trial court in passing on the evidence, yet where there is no substantial evidence on which to base its finding and judgment, the appellate court will set aside the same. Flynn v. Wacker, 151 Mo. 545; Meier v. Proctor & Gamble Co., 81 Mo.App. 410; Kingsbury v. Joseph, 94 Mo.App. 298. (6) The court committed error in excluding competent testimony offered on the behalf of the defendant.

Ernest D. Martin and Robert M. Reynolds for respondent.

(1) This is an action at law, and the court below being the trier of the fact, its finding and judgment stands as a verdict of a jury. The appellate court will not interfere unless it can be said as a matter of law, that there is no substantial evidence to support the verdict of the judgment below. Bush v. Brandecker, 123 Mo.App. 470; Martin v. Williams, 96 Mo.App. 249; Baumhoff v. Railroad, 171 Mo. 120; Corlos v. Railroad, 106 Mo.App. 574; Keen v. Keen, 184 Mo. 358. (2) The contention of appellant thus reduces itself to the one question of whether or not there is sufficient evidence in the record to support the judgment as a matter of law. (3) Marriage in this State is a civil contract, by one man and one woman competent to contract, whereby they are mutually bound to each other, so long as they both shall live, for the discharge to each other and to the public of the duties and obligations which by law flow from said contract. R. S. 1899, sec. 4311; Ashford v. Insurance Co., 80 Mo.App. 643; In re Imboden's Estate, 111 Mo.App. 220; Plattner v. Plattner, 116 Mo.App. 405; Dyer v. Brannock, 66 Mo. 391; State v. Bittick, 103 Mo. 183; Adair v. Mettee, 156 Mo. 511. (4) And such contract is not dissolvable at the will of either or both of said parties. State v. Bittick, 103 Mo. 191; Dyer v. Brannock, 66 Mo. 391; Adair v. Mettee, 156 Mo. 511; 1 Bishop on Marriage & Divorce (5 Ed.), arts. 3, 6, 221. (5) But when the contract is executed in what the law regards a valid marriage, its nature as a contract is merged in the higher nature of the status or relation, and the parties thereafter are bound by the law of the new relation, the law of husband and wife. The execution in good faith of the contract for the marriage, is in itself marriage, and an assumption of the marital status and relation. 1 Bishop, Marriage and Divorce (5 Ed.), art. 3; State v. Bittick, 103 Mo. 191; Dyer v. Brannock, 66 Mo. 417; State v. Cooper, 103 Mo. 273; Cargyle v. Wood, 63 Mo. 512; Adair v. Mettee, 156 Mo. 512. (6) The next question for consideration is how the existence of a marriage may be shown. Being a contract, it is subject to the same methods of proof as any other contract--by direct evidence, or by proof of facts and circumstances from which its existence may be implied. Ashford v. Insurance Co., 80 Mo.App. 643; In re Imboden's Estate, 111 Mo.App. 220; Plattner v. Plattner, 116 Mo.App. 405; 1 Bishop, Marriage and Divorce (5 Ed.), art. 594; 26 Cyc. 982; Cargyle v. Wood, 63 Mo. 513; Adair v. Mette, 156 Mo. 512; Imboden Estate, 111 Mo.App. 220; Ashford v. Insurance Co., 80 Mo.App. 643. (7) Considering then the evidence with reference to the law as stated, is there sufficient evidence to support the judgment. As no instructions were asked or given in the court below, if there is any theory of the law and evidence upon which it can be done the judgment will be sustained.

OPINION

[132 Mo.App. 560] ELLISON, J.

Plaintiff, claiming to be the widow of Dr. Joseph B. Davis, deceased, formerly of Saline county, presented a claim to the probate court of that county, where the estate he left was being administered, asking the allowances which the statute gives a widow, including money in lieu of a year's provisions, and $ 400 as part of personal dower. [Secs. 106-108, R. S. 1899.] She prevailed in the probate court and the circuit court, where the case was taken by appeal, and the defendant administrator has brought the case here. The cause was tried before the court, without a jury, and the defense is based on the ground that plaintiff is not the widow of deceased; that they were never married. There is no pretense of a marriage solemnized by religious ceremony, or under the statute, but a common law marriage is claimed by plaintiff to have been [132 Mo.App. 561] contracted between her and Dr. Davis. The law bearing upon common law marriages has been ably discussed at length, in oral and printed arguments, by the respective counsel.

That there may be a valid marriage without solemnization by minister, priest, or officer, is not questioned in this country, except where the statute forbids, and it once was so understood in England. [Dyer v. Brannock, 66 Mo. 391.] Marriage is recognized as a status brought about by civil contract and it may be contracted by the parties themselves, as any other contract, without even the presence of witnesses. "Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society." [Dalrymple v. Dalrymple, 2 Hag. Con. Rep. 54.] To which we may add that the marriage of Adam and

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Eve was not only without a witness, as noticed in that case, but, so far as the record shows, they married themselves, he repeating the contract and she acquiescing by silence: "And Adam said this is now bone of my bones and flesh of my flesh; she shall be called woman because she was taken out of man." [Genesis, Chap. II, v. 23.]

Like other contracts, it may witness an agreement performed eo instanti, that is, the contract of marriage may be a contract which makes a marriage at the time, ipsum matrimonium, or, as also expressed in legal terms, a marriage per verba de praesenti; or, it may be a contract not intended as a then present marriage, but for a future marriage, or as expressed in legal terms, per verba de futuro. And may be proven like other contracts. Imboden v. Trust Co., 111 Mo.App. 220, 86 S.W. 263; Plattner v. Plattner, 116 Mo.App. 405, 91 S.W. 457. These two forms are illustrated in 1 Bishop on Marriage and Divorce, [132 Mo.App. 562] section 313, by a quotation from Swinburne; thus for a praesenti contract, he says: "I do take thee to my wife," and she replies: "I do take thee to my husband." The contract in futuro is: "I will take thee,"--thus expressing a future act. When the latter form is the contract and it is followed thereafter by sexual intercourse (cum copula) the marriage becomes complete, as the law presumes in favor of innocence that "they have changed their future into a present consent."

But it is insisted by defendant that when the marriage is a common law marriage, something more than a contract in praesenti is needed. He says that there must be an assumption of the marriage status, and he argues that that assumption means a performance or entering upon the duties of the marriage...