Bishop v. Brittain Investment Company

Citation129 S.W. 668,229 Mo. 699
PartiesCATHERINE BISHOP, Appellant, v. BRITTAIN INVESTMENT COMPANY
Decision Date02 July 1910
CourtUnited States State Supreme Court of Missouri

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Affirmed.

Jas. W Boyd, K. B. Randolph and P. A. Brubaker for appellant.

(1) The court committed error in refusing to give instructions asked by appellant. Each of said instructions contains a correct statement of the law involved and necessary to a proper decision of this case. (2) The court erroneously refused to give any instruction asked by the appellant correctly defining the law relating to what is usually called a common law marriage, or a marriage by mutual agreement and contract and held and instructed the jury that there could be no marriage in Missouri known as a common law marriage, or a marriage between a man and woman by mutual contract and agreement to be husband and wife, unless such agreement after being mutually entered into, was followed by cohabitation. Every instruction asked by appellant which the court gave was erroneously modified by the court and given on its own motion, so as to make cohabitation necessary to marriage by mutual agreement or contract; or, in other words, to marriage not solemnized by a minister, or a priest, or an officer. The view of the law as taken by the trial court is erroneous in this respect. Davis v. Stouffer, 132 Mo.App. 555; Coy v. Humphreys, 123 S.W. 877; Imboden v. Trust Co., 111 Mo.App. 220; Collard v. Burch, 138 Mo.App. 94; Plattner v. Plattner, 116 Mo.App. 405; Topper v. Perry, 197 Mo. 531; State v. Kennedy, 207 Mo. 528; Dyer v. Brannock, 66 Mo. 353; State v. Hansbrough, 181 Mo. 353; Adair v. Mette, 156 Mo. 512. It is a peculiar doctrine that cohabitation, following marriage, is necessary to the existence of a contract antecedently made and entered into. (3) No verdict obtained under such circumstances, and by such arguments of counsel, should be sustained. Franklin v. Railroad, 188 Mo. 545; Eppstein v. Railroad, 197 Mo. 738; Lavelles v. Railroad, 196 Mo. 623; Rice v. Sally, 176 Mo. 148; Leu v. Railroad, 106 Mo.App. 329; Hayes v. Trenton, 108 Mo. 133; Beck v. Railroad, 129 Mo.App. 23; Messignale v. Rice, 94 Mo.App. 434; Evans v. Trenton, 112 Mo. 390; Wear Bros. v. Schmelzer, 92 Mo.App. 313; Neff v. Cameron, 213 Mo. 350. The misconduct of counsel for the respondent in this case must have been more injurious to the rights of the appellant than was the conduct of the attorneys in any one of the cases hereinabove cited. Hardly anything could be more prejudicial to the appellant's rights than the statements made by the attorneys for the respondent to the jury. By these statements they obtained a verdict, through the erroneous instructions of the court and the exclusion of proper testimony. The plaintiff offered to prove by Dr. Geiger, who had known Dr. Bishop for many years, and who studied medicine and surgery in his office, that Bishop was peculiar and eccentric in many respects, and that he did not believe in marriage by minister, priest or officer of the law; that his idea was that if persons desired to marry, they should enter into a mutual contract for that purpose, without calling a minister, priest or officer to perform any ceremony. Appellant also offered to prove by Dr. Geiger or Mrs. Spratt that when Dr. Bishop was married the first time, he refused to be married by minister, priest or officer, preferring to enter upon the marriage relationship by mutual agreement between himself and the lady he married.

Richard L. Spencer and Vinton Pike for respondent.

(1) It is not the law of this State that a common law marriage may consist of words in praesenti and nothing more. The present agreement must be followed by a present assumption of that marriage state. Topper v. Perry, 197 Mo. 531; Sorensen v. Sorensen, 56 Neb. 729; Same issue, another case, 100 N.W. 930; Lorimer v. Lorimer, 83 N.W. 609; Brown v. Brown, 142 Ill. 409. (2) What was said by counsel of defendant in argument was within the record and within their right. The trial court did not consider the appellant had been prejudiced, and his opinion of the matter, in the circumstances of this case, should decide any doubt. (3) No error was committed in exclusion of evidence. The offer that Dr. Bishop was peculiar and eccentric and did not believe in formal marriages was too remote and unsubstantial to amount to evidence. Besides, another witness testified to the same facts and they were not contradicted. The evidence was therefore merely cumulative. (4) The evidence of statements of Dr. Bishop that he was unmarried was properly admitted. Topper v. Perry, 197 Mo. 531. (5) It was immaterial whether plaintiff was the wife of Bishop after July 31, 1894. There is no evidence that a marriage relation existed between them prior to August 1, 1894. The plaintiff was not a competent witness to prove the marriage. Shorten v. Judd, 56 Kas. 47; Dennison v. Dennison, 35 Md. 361; Sorensen v. Sorensen, 56 Neb. 729; Lins v. Lenhardt, 127 Mo. 271; Imboden v. Trust Co., 111 Mo.App. 220; Lyon v. Lyon, 101 Mo.App. 495; Curd v. Brown, 148 Mo. 95. Even with plaintiff's testimony in, the evidence of a marriage before July 31, 1894, is insufficient. Henry v. McNeely, 24 Colo. 456; Hermann v. Hermann, 98 N.Y.S. 654; Laurence v. Laurence, 164 Ill. 378; Lorimer v. Lorimer, 83 N. W. (Mich.) 609.

LAMM P. J. Woodson, J., not sitting.

OPINION

LAMM, P. J.

Plaintiff, claiming to be the widow of Doctor Galen E. Bishop and that she was deforced of her dower in certain real estate, situate in St. Joseph, of which he was seized of an estate of inheritance during marriage, sued to admeasure dower. The answer raised the general issue.

Presently the trial came on before a jury in Judge Mosman's division of the Buchanan Circuit Court; the verdict was against her on the issue of marriage. From a judgment following, she comes up.

Plaintiff relies on (1) direct proof of a contract of marriage, (2) on admissions, (3) on repute and cohabitation as man and wife, pointing to such contract and a resulting status in that behalf. An understanding and disposition of such contentions seek a summary of the facts, viz.:

Bishop died in July, 1902. Plaintiff claims a common law marriage to him on January 1, 1894. Some months later, to-wit, on July 31, 1894, he executed a deed of trust to secure to one Wheeler, as curator, a loan then made on the property in question. There are record signs the value of the property is considerable, say, $ 50,000. He executed the deed of trust as a single man. On foreclosure, his title passed to defendant company. At the time of suit, the company was in possession. We get the idea that Bishop, at one time a rich man, was finally crippled financially. At the time in hand, he was well past middle age. He had long been a physician in St. Joseph, and, as an aid to fortune, made and vended a mixture called "Granger" as a medicine. He was married many years before, but his wife died in December, 1892. Plaintiff's name was Kate T. Cochran. Her father's first name was Chandler, it is suggested by counsel. At the time of (and for a year before) the alleged marriage she was "housekeeper" for Bishop under the name of "Mrs. Chandler." She assumed this name at the outset, on becoming his housekeeper, intending thereby to pass as a married woman or widow. Bishop had been an "old beau" of hers, and the name "Chandler" was assumed at his suggestion. Her explanation runs as follows: "Well, the doctor said that I would be annoyed with gossip; the doctor was an old beau of mine and he said, 'Now if you take charge of the family' . . . he sent word for me to come up and see him; he says, 'Now if you go there by the name of Miss Kate Cochran, as you always go, they will commence telling all kinds of stories and annoy you to death by gossip;' he says, 'can't you take another name, and call yourself by another name, and so they won't know anything, and the neighbors won't say anything?'" Accordingly, as she "admired" her father's name of Chandler, she accommodatingly took that. She and Bishop kept up a correspondence during the life of the first wife. Plaintiff was of mature years (over fifty, we infer) though younger than Bishop. She had lived in the region of St. Joseph -- had been a clerk, teacher and dressmaker, had worked for Bishop off and on for nine or ten years labelling medicine bottles when his business was brisk. There is testimony (which she denies) giving an unfavorable turn to the relations between them, viz., of visits to his private apartments heavily veiled and of apparent free access to them. The lady said their relations were "Platonic" -- witness: "Q. What were your relations with Doctor Bishop before this alleged marriage? A. They were pure and proper. Q. You never had any intercourse with him whatever before that time? A. No, sir. Our friendship was Platonic; Doctor Bishop was an intellectual man and he liked what he said was an intellectual woman, and our friendship was always pure."

Bishop had two children by his first marriage -- a boy and a girl. At the time of the death of their mother the girl, Anna, was thirteen, the boy the younger of the two. The doctor kept house. Two or three months after his wife's death he wrote plaintiff to come as his housekeeper, because the one he had was stealing. She came and was installed in that capacity.

On taking the stand in her own behalf, her competency was challenged. The court overruled the objection and counsel saved the point.

Her testimony is to the effect following: It had been arranged that her niece, Mrs. Spratt, should witness the marriage; but the doctor had "patients at the office," expressed himself as "sorry" for the niece's absence, saying, "I can't wait for...

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