Osmak v. American Car & Foundry Co.

• Citation: 40 S.W.2d 714,328 Mo. 159
• Parties: Elizabeth Osmak, Appellant, v. American Car and Foundry Company, Walter Cowell, Leonard J. La Fleur and Emmett Johnson
• Decision Date: 24 June 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 714

328 Mo. 159

Elizabeth Osmak, Appellant, v. American Car and Foundry Company, Walter Cowell, Leonard J. La Fleur and Emmett Johnson

Supreme Court of Missouri

June 24, 1931

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Reversed and remanded.

Bass & Bass and John Grossman for appellant.

(1) It will be presumed in favor of the second marriage that at the time thereof the first marriage had been dissolved, either by a divorce or by death of the former spouse, so as to pass the burden of introducing evidence to the contrary on the party attacking the second marriage, and this presumption in favor of the legality of the second marriage is one of the strongest known to the law. 1 Greenleaf Ev., pars. 33, 35; 19 Amer. & Eng. Ency. Law (2 Ed.) 1209; Klein v Laudman, 29 Mo. 259; Johnson v. Railroad Co., 203 Mo. 381; Maier v. Brock, 222 Mo. 74; Jackson v. Phelan, 237 Mo. 142; Nelson v. Jones, 245 Mo. 579; Phillips v. Wilson, 298 Mo. 186; 22 C. J 144, 145; Jones v. Jones, 164 P. 463; Shepard v. Carter, 119 P. 533; 2 Schuler on Marriage & Divorce (6 Ed.) 1486 et seq.; In re Salvin's Will, 173 N.Y.S. 897; Schubert v. Barnsolt, 158 N.W. 662; 1 Bishop on Marriage & Divorce (6 Ed.) par. 457; Coal Run Coal Co. v. Jones, 127 Ill. 379. The presumption that the second marriage is valid exists until it has been overthrown by clear, cogent and satisfactory evidence, leaving no room for reasonable doubt in the mind of the chancellor. The parties attacking such second marriage have the burden of proof to show that neither party to the first marriage had obtained a divorce. The proof offered on behalf of defendants does not in any way meet with these requirements. Nelson v. Jones, 245 Mo. 579; Jones v. Jones, 164 P. 463; Shepard v. Carter, 119 P. 533, 38 L. R. A. (N. S.) 568; 2 Schuler on Marriage & Divorce (6 Ed.) 1486 et seq.; Johnson v. Terminal Railroad Co., 203 Mo. 381; Bishop on Marriage & Divorce (6 Ed.) par. 457. (2) The court committed error in admitting statements of the deceased, in which he is alleged to have said that he, deceased, was not divorced from his first wife, said statements being hearsay as to appellant, whom he married four years after the statements are alleged to have been made. Vantine v. Butler, 240 Mo. 534. (3) The testimony of the first wife that she had never been served with any papers pertaining to any suit for divorce brought by the deceased against her is objectionable and incompetent, because it was immaterial, and for the further reason that it was not necessary for the deceased to have had personal service upon the first wife, but could have procured a decree of divorce upon an order of publication. Secs. 1196, 1804, R. S. 1919. (4) The testimony of the first wife that she had never learned from any source that the deceased had brought suit against her or had procured a decree of divorce in any court, was incompetent because it was hearsay. (5) The testimony of the witness Linton, in reference to the result of his examinations of the records of the city of St. Louis and of the County of St. Louis to determine the fact of the granting of a decree of divorce or the lack of the granting of a decree of divorce to the deceased, was incompetent and inadmissible because it was not the best evidence, nor was the witness shown to have been sufficiently conversant and familiar with all the records of those courts, nor qualified to state their content or their lack of content. The best evidence would have been the testimony of the custodian of those records. Nelson v. Jones, 245 Mo. 594; Carp v. Ins. Co., 203 Mo. 295. The testimony was further objectionable because it assumed that the deceased lived in the city of St. Louis and St. Louis County only during the period of time covered by his examination.

Watts & Gentry for respondents; G. A. Orth of counsel.

(1) The proposition of law stated under this point by appellant is admitted by respondents to be correct. The authorities which they cite in support of this proposition do, in fact, support it. As to the cases cited by them under this point, however, while they announce the proposition relied upon by respondents, we shall, in our argument, show that the facts in those cases were quite different from the facts developed in the case at bar -- so different that the cases are not authorities against the contention of respondents. The respondents acted on the principle contended for by appellant, and introduced their evidence accordingly, and respectfully insist that they bore the burden placed upon them by the law and showed by indisputable evidence that the first marriage of John Osmak was never terminated by death or divorce and that, therefore, the marriage with plaintiff was illegal and she is not the lawful widow. Therefore, she could not possibly recover and the case was properly abated. Kinney v. Tel. Co., 222 S.W. 227; Gamble v. Rucker, 124 Tenn. 415, 137 S.W. 499; Payne v. Payne, 219 S.W. 4, 142 Tenn. 320; Pittinger v. Pittinger, 89 Am. St. 200; Schmisseur v. Beatrie, 147 Ill. 210; Turner v. Williams, 202 Mass. 500, 89 N.E. 110; Williams v. Williams, 63 Wis. 58; Brokeshoulder v. Brokeshoulder, 204 P. 287; 38 C. J. 1344; Madison v. Steckleberg, 224 P. 961; Clendening v. Parker, 69 Cal.App. 685; Marsh v. Marsh, 250 P. 414; Floyd v. Fidelity & Union Cas. Co., 13 S.W.2d 909; Cole v. Cole, 153 Ill. 585; Succession of Thomas, 80 So. 186; In re Colton's Estate, 129 Iowa 542; Smith v. Fuller, 138 Iowa 91; Copeland v. Copeland, 175 P. 764. (2) The statements made by John Osmak and Mary Kramer shortly before her death in the conversation at which Kate Haag was present, were properly admitted in evidence as statements of pedigree and family history. Such statements are admissible under the circumstances shown to have existed in this case, both Mary Kramer and John Osmak having died before the time of the trial, and neither John, Mary nor Kate Haag ever having had any interest in this case. Greenleaf on Evidence (Lewis Ed.) 103, sec. 104; 2 Wigmore on Evidence, secs. 1480, 1501; Imboden v. Trust Co., 111 Mo.App. 236; In re Estate of Imboden, 128 Mo.App. 555; Topper v. Perry, 197 Mo. 531; Rauch v. Metz, 212 S.W. 357; Tuite v. Woodmen Circle, 193 Mo.App. 619. (3) The testimony of Margareta Osmak, first wife of John Osmak, to the effect that she had never been served with any papers pertaining to any suit for divorce was admissible, because the defendant was obliged, under the decisions, to try to prove a negative, to-wit, that there had never been any divorce. Since there are two ways in which service in divorce suits may be had under different circumstances, it was proper for the defendant to introduce evidence to show that no personal service had ever been had upon Margareta. That excluded one method by which a divorce might have been obtained. (4) It was proper to admit the testimony of Margareta Osmak to the effect that she had never learned of the institution of any suit for divorce against her. This merely amounted to showing that she had no knowledge of the institution of a suit for divorce. While it may be said that a divorce might have been obtained in this country without her knowledge, it was proper to show that she had never heard of such a thing and to follow that with testimony showing that such a thing had not been done. (5) It was proper to permit the witness Linton, an attorney practicing in the city of St. Louis, to testify that he had carefully examined the indices of the records of the Circuit Court of the City of St. Louis, and those of the Circuit Court of St. Louis County, and that no record had been found by him of the institution of a suit for divorce in either court. Where the records were voluminous, as they undoubtedly were in this instance, the best way to prove that the records did not contain a certain thing was to use the testimony of a man, skilled in such matters, who had carefully examined the records and could testify that the records did not reveal the institution of such a suit. Nelson v. Jones, 245 Mo. 579. The evidence showed without dispute that from the time of his coming to this country until the day of his death, John Osmak resided continuously in the city of St. Louis, and, therefore, the best way to prove that no divorce was granted during that time was by such an examination as Mr. Linton made. The statutes of this state require clerks of circuit courts to keep indices in alphabetical order showing all the proceedings of such courts. R. S. 1919, sec. 1802. The word "proceedings" includes everything that is done in a case from the moment when the first paper is brought into the office of the clerk of the court until a suit is completely terminated, and, if course, that includes instituting suits. "Words and Phrases" 5632, 5633. The court will, therefore, presume that the indices in the office of the clerk would show the name of a case brought by John Osmak for a divorce if such a suit had been instituted, for the law presumes that public officials do their duty, in the absence of evidence showing the contrary. Chilton v. Metcalf, 234 Mo. 27. The examination of the indices was, therefore, the proper method to determine whether or not a divorce suit had been brought, and it might well be made by a lawyer in his home state. In re Coulton's Estate, 129 Iowa 542.

OPINION

Ragland, J.

This case comes to the writer for an opinion on reassignment. It is an action to recover the statutory penalty for the death of one John Osmak, alleged to have been caused by the negligence of defendants whilst running a car or train of cars.

The petition alleged "that on the 16th day of October, A. D 1922, and prior thereto for many years, she was the lawfully wedded wife of John Osmak, deceased, and as such brings...