Coy v. Humphreys

• Decision Date: 07 February 1910
• Citation: 125 S.W. 877,142 Mo.App. 92
• Parties: FRANK COY, Respondent, v. THOMAS H. HUMPHREYS, Appellant
• Court: Missouri Court of Appeals

125 S.W. 877

142 Mo.App. 92

FRANK COY, Respondent, v. THOMAS H. HUMPHREYS, Appellant

Court of Appeals of Missouri, Springfield

February 7, 1910

Appeal from Taney Circuit Court.--Hon. John T. Moore, Judge.

Judgment affirmed.

C. B Sharp and D. F. McConkey for appellant.

(1) The presumption of law is against vice and in favor of innocence and good morals, and on this ground the law presumes marriage where, as in this case, the evidence shows ceremony acknowledgment, cohabitation, the birth of children and reputation of marriage. Cargile v. Wood, 63 Mo. 501; Adair v. Mette, 156 Mo. 512; Plattner v. Plattner, 116 Mo.App. 405; Imboden v. Trust Co., 111 Mo.App. 220; Meister v. Moore, 96 U.S. 76; Maryland v. Baldwin, 112 U.S. 490; Nims v. Thompson, 17 L.R.A. 847; Hynes v. McDermott, 91 N.Y. App. 451. (2) It is not necessary that both parties should intend at the time that the agreement should be binding upon them. Barnet v. Kimmell, 35 Pa. (11 Casey) 13; Imboden v. Trust Co., 111 Mo.App. 220.

Price & Ford for respondent.

(1) Respondent's instructions numbered two and three, defining common-law marriage, correctly set out the elements necessary to constitute such a marriage, and, when taken in connection with those given by the court on its own motion, fairly, fully and impartially present the issues to the jury, and were not prejudicial to the defendant. Banks v. Galbraith, 149 Mo. 529; Topper v. Perry, 197 Mo. 545; State v. Hansbrough, 181 Mo. 348; State v. Cooper, 103 Mo. 266. (2) After positive proof of respondent's marriage with Hettie, his present wife, the law will not presume a former marriage with Belle Hoffman from proof of cohabitaton and reputation, but will require positive proof of such former marriage. Chapman v. Cooper, 5 Rich. (S. C.) 452; Chamberlain v. Chamberlain, 71 N.Y. 423; Jones v. Jones, 45 Md. 144; Hirtchens v. Kimmell, 31 Mich. 126; Case v. Case, 17 Cal. 598; Klien v. Laudman, 29 Mo. 259; Waddingham v. Waddingham, 21 Mo.App. 609; 2 Greenleaf on Ev. (1 Ed.), sec. 461.

OPINION

NIXON, P. J.

This was an action by the plaintiff, Frank Coy, commenced in the Taney Circuit Court, his petition alleging that he was married to his wife, Hettie Coy, in the year 1899, and that the defendant, Thomas H. Humphreys, being their family physician, took advantage of the confidential relations growing out of his professional employment and alienated the affections of his wife. On a trial before a jury, the plaintiff obtained judgment for the sum of fifteen hundred dollars from which the defendant has appealed.

At the trial of the issues, the plaintiff to maintain his case introduced a voluminous mass of evidence which abundantly sustained the allegations of his petition, showing that the defendant was his family physician, that defendant took advantage of the confidential relations growing out of his professional employment and alienated the affections of plaintiff's wife. This evidence reeks with the stench of moral pollution and utter rottenness.

The defendant, to sustain the issues in his behalf, introduced another mass of evidence to show that the plaintiff had formerly resided in the Indian Territory, and while there, had contracted a common-law marriage with one Belle Hoffman from which he had never been divorced; that he had cohabited with her and held her out to the world as his wife and that there was born of such marriage one child. The defendant declined to go upon the witness stand in his own defense, virtually confessing the charges made in plaintiff's petition and setting up the bigamous marriage of the plaintiff to Hettie Coy as a defense to the action.

In reply to these charges, the plaintiff in rebuttal introduced his former paramour, Belle Hoffman, who testified that she had sustained the relation of concubine to the plaintiff in the Indian Territory, but that there was no common-law marriage between them; that this took place some ten or fifteen years prior to the institution of this suit; that since returning to the State of Missouri, they had each contracted marriages with other parties with whom they were living and raising families.

I. At the trial, the plaintiff introduced as a witness in his behalf his present wife, Hettie Coy, who was allowed by the court to testify over the objections of the defendant. After stating her name, she proceeded substantially as follows:

"I have been making my home with Frank Coy for the past eight years, to whom I was married in the year 1899, and Frank Coy and myself have three children, the oldest being seven years of age. Since my marriage, my health has been very poor. My physician has been Dr. Humphreys, the defendant. I have received several letters from Dr. Humphreys with his name signed to them. While he was treating me, he told me that my parts were affected and that it was necessary to have an operation; that after we were married, he would take me to St. Louis to a board of doctors and have the operation performed there. We were under a contract to get married, and it was while this contract existed that he made this statement about taking me to St. Louis for treatment. His kind treatment is what gained my affection. He always told me I was a very nice looking woman and too good to live with such a man as Frank Coy. Yes, he said I was cruelly treated. I was in love with him. We were to marry as soon as we could make our arrangements to get divorces. We had a talk about getting divorces and he told me his wife was willing for him to have a divorce any time he asked for it, and I was to try and get one as hard as I could, and he said that he would assist me all the way through and furnish the money that was needed to carry it out. As soon as we got divorces, we were to get married, but made no arrangements about what we would do with the children. From the time that he began to make these representations to me, I did not have much feeling towards Frank Coy. I was in love with Frank Coy at one time and up until I fell in love with Dr. Humphreys."

This testimony on the part of the plaintiff's wife was objected to by the defendant and its admission at the trial is assigned as error.

The case of Cramer v. Hurt, 154 Mo. 112, 55, 55 S.W. 258 S.W. 258, is a case bearing a remarkable resemblance in every essential respect to the present. It was a suit by a husband against a physician for damages for producing an abortion on the plaintiff's wife. The physician was permitted to testify in his own behalf concerning information which he acquired from the wife of the plaintiff while attending her in a professional capacity by an examination of her body and conversations with her which was necessary, according to his testimony, to enable him to treat her. BURGESS, J., delivering the opinion of the court, held that the statute concerning witnesses did not authorize his being a witness, but that under the necessities of the case, his testimony was competent. In the same case, the wife of the plaintiff was offered as a witness in his behalf, and her testimony was excluded. The Supreme Court held that her testimony was competent and should have been received. The court say: "Moreover, we think Mrs. Cramer is a competent witness in the case on general grounds of public policy, for if it be known that a married woman is a competent witness for her husband, in a suit for damages by him against a physician who produces an abortion upon her without the consent of the husband, in consequence of which her health is injured and he is deprived of her services to which he is entitled by law, and expenses are entailed upon him in her nursing and for medical treatment, it might to some extent at least put a stop to such revolting and unnatural practices." See also Schweikert v. Schweikert, 108 Mo.App. 477, 83 S.W. 1095.

The principle stated in the Cramer...