Bishop v. Brittain Inv. Co.

• Decision Date: 22 June 1910
• Citation: 229 Mo. 699,129 S.W. 668
• Parties: BISHOP v. BRITTAIN INV. CO.
• Court: Missouri Supreme Court

129 S.W. 668

229 Mo. 699

BISHOP v. BRITTAIN INV. CO.

Supreme Court of Missouri, Division No. 1.

June 22, 1910.

Rehearing Denied July 2, 1910.

1. MARRIAGE (§ 40) — COMMON-LAW MARRIAGE—MERETRICIOUS RELATIONS.

Where, on an issue of common-law marriage, plaintiff testified that her relations with her alleged husband during the lifetime of his first wife were platonic, it would not be presumed that their relations were improper, so as to place on plaintiff the burden of proving that their character did not continue to be meretricious after the death of the alleged husband's first wife and became those of husband and wife.

2. WITNESSES (§ 144)—TRANSACTION WITH PERSON SINCE DECEASED — COMMON-LAW MARRIAGE — COMPETENCY OF ALLEGED WIDOW.

Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), provides that in actions where one of the original parties to the contract is dead, the other party shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him. Held, that on an issue of common-law marriage, in an action by the alleged widow to recover dower, she was incompetent to prove the marriage.

3. MARRIAGE (§ 22) — COMMON-LAW MARRIAGE.

Under Rev. St. 1899, § 4311 (Ann. St. 1906, p. 2370), providing that marriage is a civil contract to which the consent of the parties capable in law of contracting is essential, marriage by cohabitation and repute is valid in Missouri.

4. MARRIAGE (§ 22)—"COHABITATION."

"Cohabitation" between a husband and wife essential to common-law marriage contemplates a dwelling or living together as husband and wife.

5. MARRIAGE (§ 52) — COMMON-LAW MARRIAGE—INSTRUCTIONS.

Where, on an issue of common-law marriage, plaintiff was herself incompetent to testify, and the remaining proof rested in admissions and proof of repute and of assumption of the relation of man and wife, the court did not err in modifying several instructions by inserting clauses requiring the jury to find that plaintiff and deceased, following the alleged contract to marry, lived and cohabited together as man and wife.

6. MARRIAGE (§ 52) — COMMON-LAW MARRIAGE—INSTRUCTIONS.

On an issue of common-law marriage, the court did not err in refusing to charge that if the jury believed from the evidence that from and after January 1, 1894, plaintiff and deceased lived together as husband and wife, and that she was reputed to be his wife and he recognized her as such, then the law presumed that she was his wife, that the presumption of marriage from cohabitation and residing together as husband and wife was one of the strongest presumptions known to the law, which presumes morality and not immorality, marriage and not concubinage, legitimacy not bastardy.

7. MARRIAGE (§ 48) — COMMON-LAW MARRIAGE—EVIDENCE—DEEDS.

On an issue of marriage by cohabitation and repute, certain deeds executed by the alleged husband as a bachelor while the alleged marriage was claimed to be in existence, were admissible to show that he was not married, and that there was no public recognition by him of that status.

8. MARRIAGE (§ 48) — COMMON-LAW MARRIAGE—EVIDENCE—BELIEF OF PARTIES.

On an issue as to the existence of a marriage by cohabitation and repute, evidence that the alleged husband believed in common-law marriages, was inadmissible.

9. TRIAL (§ 121)—ARGUMENT OF COUNSEL— STATEMENT.

It was not error for counsel for defendant, by way of inducement to lend color to his conclusions in sustaining his theory of the case, to speak of professional connection with a former trial of the same issue, and to comment on the conflicting statements of the plaintiff on the two trials.

10. APPEAL AND ERROR (§ 1060)—PREJUDICE —MISCONDUCT OF COUNSEL.

Where plaintiff was not entitled to recover on the facts, and it appeared that during a colloquy between counsel the jury had been informed that the issue had been determined against plaintiff on a prior trial, she was not harmed by argument of defendant's counsel in which he erroneously stated that the verdict on the former trial had been for defendant, and sought to induce the jury to follow the path of their predecessors.

11. TRIAL (§ 114)—ARGUMENT OF COUNSEL.

On an issue as to a common-law marriage between plaintiff and deceased, it was not error for defendant's counsel in argument to point the jury to certain alleged "rich old bachelors" in the city and state that their right to convey their real estate might be impinged if women were permitted to establish an alleged marriage in the manner plaintiff was attempting to do; such argument being mere oratorical conceit or flourish.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Catherine Bishop against the Brittain Investment Company, to recover dower. Judgment for defendant, and plaintiff appeals. Affirmed.

J. W. Boyd, K. B. Randolph, and P. A. Brubaker, for appellant. R. L. Spencer and Vinton Pike, for respondent.

LAMM, P. J.

Plaintiff, claiming to be the widow of Dr. Galen E. Bishop and that she was deforced of her dower in certain real estate, situated 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 that 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 times 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. 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 9 or 10 years labeling 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 Dr. 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; Dr. 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 13, and the boy the younger of the two. The doctor kept house. Two or three months after his wife's death he wrote her 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 her." From time to time he had suggested plaintiff be his "common-law wife." But the lady, doubting the honor, had steadily declined. Finally, on New Year's day, 1894, he renewed his suit argumentatively, and she, erstwhiles refusing to consent, now consented at 10 a. m., a spell before the niece arrived. Her story of the argumentative wooing, the coy delay, the final consent and primeval nuptials runs this way (scene, the kitchen): "* * * And he said, `You know we are just as capable of keeping a contract between us;' and at the time it came all over me, and he said, `What objection I had to him,' and I said, `You have a son and a young girl,' and I said, `We will have trouble over this sort of a marriage as his wife,'...