Bower v. Graham
| Decision Date | 02 December 1920 |
| Parties | JAMES M. BOWER et al., Appellants, v. MARTHA GRAHAM et al |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.
Affirmed.
Hiett & Scott for appellants.
(1) A child begotten before the commencement of a suit for divorce is presumed to be the legitimate child of the then husband. To rebut this presumption the most satisfactory and convincing proof that the husband is not the father of the child must be given. Cross v. Cross, 23 Am. Dec 778; R. S. 1909, secs. 342, 2370; Nelson v. Jones, 245 Mo. 579; Egbert v. Greenwalt, 38 Am. Rep. 263; 3 Ency. of Law, par. 2, p. 72; 3 R. C. L., par. 6, p. 726; Kennedy v. State, 173 S.W. 842; Johnson v Johnson, 30 Mo. 72; Gates v. Seibert, 157 Mo 272; Martin v. Martin, 250 Mo. 545; Powell v. State, 95 N.E. 660; 7 Corpus Juris, par. 7, p. 942; Drennan v. Douglas, 40 Am. Rep. 597. (2) The presumption of law is that a child is presumed to be legitimate child of its mother's husband at the time it was begotten and this presumption being raised its mother would be an incompetent witness to prove that such child was not begotten by such husband. In re Miles Estate, 70 P. 91; Mink v. State, 19 N.W. 445, 50 Am. Rep. 386; 3 R. C. L. par. 12, p. 732; Kennedy v. State, 173 S.W. 842; Liles v. State, 174 S.W. 1196; Ewell v. Ewell, 79 S.E. 509; People v. Case, 137 N.W. 55; Wallace v. Wallace, 114 N.W. 258; Foote v. State, 144 S.W. 275; Cross v. Cross, 23 Am. Dec. 778; Mink v. State, 19 N.W. 445; Rhyne v. Hoffman, 59 N.C. 335; Powell v. State, 95 N.E. 660. Any evidence of the wife's adultery at or about the time of conception is not enough to rebut the presumption. Cross v. Cross, 23 Am. Dec. 778; 7 Corpus Juris, par. 15, p. 946; Drennan v. Douglas, 40 Am. Rep. 595; Powell v. State, 95 N.E. 660; 7 Corpus Juris, p. 946, note 86, and p. 945, note 75; Greenleaf on Evidence (15 Ed.), sec. 28, p. 44; Egbert v. Greenwalt, 38 Am. Rep. 260. (3) Whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality. 3 R. C. L. par. 6, p. 726; Egbert v. Greenwalt, 38 Am. Rep. 260; Nelson v. Jones, 245 Mo. 579; Maier v. Brock, 222 Mo. 74; Johnson v. Railroad, 203 Mo. 381. (4) The defendant relies upon the presumption that a child born in lawful wedlock is the legitimate child of its mother's husband at the time of its birth. The plaintiff relies upon the presumption that if a child is begotten in lawful wedlock it is the legitimate child of its mother's husband at the time it was begotten. Both of these presumptions are not conclusive but both are rebuttable. Drake v. Hospital, 266 Mo. 10; 7 Corpus Juris, par. 6, p. 942, note 36; 3 Ency. Law, p. 876. (5) A presumption may be rebutted by a contrary and stronger presumption. Wadingham v. Wadingham, 21 Mo.App. 609; Tarvall v. Railroad, 113 Mo. 570. (6) Evidence of the resemblance of a child to its alleged father is not admissible. 7 Corpus Juris, par. 125, p. 993; 3 Ency. Law (2 Ed.), par. 9, p. 885; 2 Ency. Evidence, par. 8, p. 253; Hannawalt v. State, 54 Am. Rep. 558; McCallaman v. State, 48 S.E. 609.
Lamar & Lamar for respondents.
(1) The mere fact that during the time when a child was conceived the mother was the wife of a man, from whom she obtained a divorce a short time before the child was born is not sufficient to overcome the presumption that the child is the legitimate off-spring of the man whom she married immediately after the divorce and who was her husband at the time of the birth of the child, the child being born a few months after the marriage with the second husband. 3 R. C. L. p. 730, sec. 10; Zachman v. Zachman, 201 Ill. 380. (2) This is an action at law. The court sitting as a jury passed upon the issues and found against the appellants as to the paternity of the child. This finding is entitled to all the presumptions which attach to a verdict of a jury and this court will not disturb such finding, if it is supported by any substantial evidence. In re Langford's Estate, 172 Mo. 18; Roloson v. Riggs, 274 Mo. 528; Walker v. Roberts, 204 S.W. 18; Boas v. Branch, 208 S.W. 86; Bingham v. Edwards, 210 S.W. 885; Hayes v. McLaughlin, 217 S.W. 264. (3) Appellants complain of the admission of the testimony of Martha Bower to the effect that her then husband, Will Jackson, had no marital relations with her after Christmas 1908. There are several answers to this contention. (a) This evidence was not objected to. The evidence that plaintiff objected to was her evidence as to her adulterous relations with Bower, which is an entirely different question. She is competent to testify to such relations, but if not, such adulterous relations are amply proven by her sister. Later on in her evidence, when she was asked concerning the access and non-access of her husband William D. Jackson, after Christmas, 1908, no objection was made by plaintiff to this evidence. That plaintiff cannot convict the trial court of error in admitting evidence to which he did not object needs no citation of authorities. (b) Even if plaintiff had objected to the testimony of the mother of the child as to the non-access of her then husband, the weight of authority is to the effect that such evidence is admissable. 3 Wigmore on Evidence, secs. 2063, 2064, and notes; Bunel v. Nester, 203 Mo. 429; In re Gird's Estate, 108 P. 502; Tout v. Woodin, 137 N.W. 1003; Evans v. State, 75 N. E. (Ind.) 651; In re McNamara's Estate, 183 P. 554. (c) Whether Mary Bower be adjudged the child of Timothy Bower, or of William Jackson, she is under the law in either event a legitimate child and the testimony of her mother as to her parentage cannot render her illegitimate. Schouler on Domestic Relations (3 Ed.), p. 305, sec. 225. (4) It is a settled rule of law in this and other states that where a case is tried by the court sitting as a jury, and no declarations of law asked or given and both competent and incompetent testimony has been admitted, if there is in the record substantial competent evidence to support the finding of the trial court an appellate court will indulge the presumption that the trial court based its finding on the evidence which was competent and disregarded the incompetent. It will not reverse because such incompetent evidence was admitted. Lewis v. Frankle, 158 Mo.App. 262; Bank v. Wodz, 197 Mo.App. 696; Diggs v. Henson, 181 Mo.App. 34; Laumier v. Gehner, 110 Mo. 126; McCullough v. Ins. Co., 113 Mo. 616; King v. Slater, 133 S.W. 173; Champion v. McCarthy, 81 N.E. 808; Patterson v. People, 130 P. 628; Ford v. Lou-Kum-Shu, 146 P. 199. (5) On the question of paternity, the evidence of resemblance of the child and the putative parent is admissible. 7 Corpus Juris, p. 944, sec. 14. (6) If a child is born in wedlock it is legitimate and this is true, although there be antenuptial conception. Zachmann v. Zachmann, 66 N.E. 256; State v. Romaine, 11 N.W. 721; Wallace v. Wallace, 114 N.W. 527; McRae v. State, 61 So. 977. (7) If a child is born in lawful wedlock it is a legitimate child. 7 C. J. p. 938, sec. 1; p. 940, sec. 6; 1 Words and Phrases (2 Ed.), p. 409; 2 Kent's Commentaries, p. 208; 1 Blackstone's Commentaries, p. 466; Schouler's Domestic Relations (3 Ed.), sec. 225; Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 259 Mo. 545; State v. Romaine, 11 N.W. 721. (8) Under the law if a man marries the mother of an illegitimate child and thereafter recognizes the child as his own it becomes his legitimate child. Drake v. Hospital Assn., 266 Mo. 7; Ives v. McNicoll, 53 N. E. (Ohio) 60; Briedenstein v. Bertram, 198 Mo. 347; Nelson v. Jones, 245 Mo. 595; Miller v. Pennington, 75 N.E. 919. (9) The question of paternity is a question of fact, and if there is any evidence to justify, it should be submitted to a jury, or the court, sitting as a jury. 3 Wigmore on Evidence, secs. 2063, 2064; 2 Kent's Commentaries (14 Ed.), pp. 211, 212, and note a; Schouler's Domestic Relations (3 Ed.), sec. 225, p. 307; 1 Greenleaf on Evidence (14 Ed.), p. 44, sec. 28; State v. Shaw, 94 A. 436; In re Walker's Estate, 181 P. 792; 7 C. J. p. 945, sec. 15. (a) Appellants take the position that there is a conclusive presumption of law that a child concived in wedlock is the off-spring of the then husband and wife, unless the non-access of the then husband be conclusively shown. It will be found by an examination of the authorities that this rule, if it ever was the rule, has been modified, and while there is a presumption that the then husband is the father it is a rebuttal presumption, and may be rebutted by any competent evidence, and facts and circumstances may be given in evidence to rebut such presumption. Walker Case, 181 P. 796.
BROWN, C. Ragland and Small, CC., concur.
This suit was begun in the Circuit Court of Texas County on February 14, 1916. Its general object is to try the title to about one hundred and sixteen acres of land in said county, fully described in the petition, and of which one Timothy S. Bower died seized in 1910. At the time of his death he resided in Wichita County, Texas, where his personal estate was administered. He left a widow, Martha, who has since intermarried with one Graham, and is sued by that name. She has ever since been living on the land with her child, the defendant Mary Bower. The identity of the child's father is the sole subject of controversy in this case. If she is, in contemplation of law, for the purpose of inheritance, the daughter of Bower, she and her mother take the land. If not, his collateral heirs take it subject to her mother's interest as widow.
Bower's father and mother predeceased him. He left no other child but, at the time of his death, had four brothers and four sisters. Two of these brothers, James M. Bower and...
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