Bowman v. Little

• Decision Date: 24 August 1905
• Parties: BOWMAN v. LITTLE et al.
• Court: Maryland Court of Appeals

61 A. 657

101 Md. 273

BOWMAN v. LITTLE et al.

Court of Appeals of Maryland

August 24, 1905

Dissenting opinion. For majority opinion, see 61 A. 223.

PEARCE J.

I have heretofore expressed my conviction that dissenting opinions should be rarely indulged in. The conclusions of the court after argument and deliberation, always carry with them the presumption of correctness, and frequent dissents weaken the voice of authority without commending the dissenter. Even when it is felt to be a duty to dissent, it does not follow that it is always wise to assign reasons therefor; but, after a sincere attempt to reconcile myself to the disposition of this case, I have not been able to do so, and, as it deals with a question of vital importance to the social and domestic fabric in a form never before presented in this state, I feel that I am justified in expressing the views which I am unable to yield to those of my Brothers.

The circuit court rejected the defendants' first and second prayers, which are transcribed in full in the opinion of this court--the first asking an instruction that there was no legally sufficient evidence of the identity of George Walter Bowman, referred to in the record of the marriage in Camden N.J., offered in evidence, with the George Walter Bowman whose estate is the subject of controversy in this case; and the second asking an instruction that there is no legally sufficient evidence of the identity of the Catherine McGranigan, referred to in the record of said marriage, with the plaintiff in this case. This court holding these prayers should have been granted, it became immaterial to inquire whether there were other errors in the rulings in the record since there could be no recovery by the plaintiff without proof of such identity. In my opinion these prayers were properly rejected, for the reasons which I shall endeavor to state, and in that connection I shall consider the plaintiff's fifteenth prayer, which was rejected, and which asked an instruction that the similarity of names in the record of the marriage at Camden, N.J., with the names of the plaintiff and the defendants' intestate, raises a presumption in law that the persons are the same. Certainly proof of the marriage of the plaintiff at the time and place alleged by her is indispensable to her recovery, but in inquiring "what kind of evidence is necessary to establish that status or relation, and of what probative value it should be," it is not necessary to controvert that there must be "strict proof" of such marriage "as an actual fact," as stated in Taylor v Taylor, 5 Eng.Ec.Rep. 454. I do not understand, however, that "strict proof," either as applied to identity of persons, or any other issue of fact, is the equivalent of mathematical demonstration, or that, in determining the identity of parties to an alleged marriage, it can only be satisfied by the testimony of living witnesses to the performance of the marriage ceremony. The word "strict" is defined in the Century Dictionary as "exacting, rigorous, severe," and that definition best accords with the general acceptance of the word. There are degrees of strictness, and "strict" proof is not "strictest" proof. Shakespeare speaks of "strict statutes," of "more strict restraint," and of "strictest decrees." In law, "strict construction" excludes mere implications, but does not require a literal and blind adhesion to mere words. Thus the rule that attachments can only be sustained on "strict compliance" with the terms of the statute has been construed to mean by a substantial compliance therewith. 27 Am. & Eng.Enc.Law, 189.

The case of Jones v. Jones, 45 Md. 144, cited in the opinion in this case to sustain the ruling of this court upon these prayers, I conceive to be authority for the ruling made by the lower court in refusing them. That was a case of issues to a jury involving the proof of an alleged marriage, and one of the defendant's prayers concluded with an assertion that there was no evidence of any such marriage. This was refused by the superior court of Baltimore city, and in affirming this ruling Judge Alvey said: "Whatever we may think of the verdict as the result of the whole evidence in the cause, this court will not say that the entire case, or the consideration of any particular question ínvolved in it, should be taken from the jury, upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from which a rational conclusion may be drawn as opposed to the theory of such prayer. Before such a prayer can be granted, the court must assume the truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence; and this, though such evidence be contradicted in every particular by the opposing evidence in the cause. Upon no other principle can the case be withdrawn from the consideration of the jury, who alone are competent to decide on facts of which contradictory evidence has been given. But, upon the other hand, where the evidence is of such light and inconclusive nature that no rational conclusion can be fairly drawn therefrom in support of the claim or defense sought to be maintained by it, it becomes the imperative duty of the court to instruct the jury that such evidence is not sufficient to be considered by them, and that their finding should be accordingly." The italics in the above quotation are mine. The principles there announced had been declared in earlier cases, and have been repeated in later cases, and I have only cited the passsage here for the purpose of showing that those principles have been applied, without limitation or qualification, to a case involving the fact of marriage, and that there is no reason disclosed why they should not be applicable, when the particular question under consideration happens to be the identity of the parties to an alleged prior marriage and the consequent validity of a subsequent marriage. It is no answer to the principles laid down in the passage I have cited from Jones v. Jones, supra, to say that "the law favors morality and not immorality, marriage and not concubinage, legitimacy and not bastardy." These are wise and righteous presumptions; but they are presumptions only. When confronted with evidence, that evidence must be considered, and, when met by preponderating evidence, those presumptions must yield to such evidence, as other presumptions must, whatever may be the result; and that evidence must be submitted to the tribunal which deals with all the other evidence in the case, under the uniform rule which governs the courts in determining upon the legal sufficiency of evidence, irrespective of the particular question to which it is addressed, unless the presumption be one of the few which are conclusive in law. The tendency has long been to narrow the list of conclusive presumptions, and "courts are now everywhere inclined to abandon the arbitrary rules of evidence which formerly forbade inquiry into the real facts." 1 Jones on Evidence, § 10. If the rule for which I contend be not correct, then a case may be withdrawn from the jury upon some other principle than that which Judge Alvey has declared to be the "only principle" upon which any case, or the consideration of any question involved therein, can be withdrawn.

In order to justify this dissent, I must recite the evidence admitted (without exception) as touching these two questions in the case. The marriage certificate, which the court holds to constitute no evidence, either alone or in conjunction with all the other evidence in the case, legally sufficient to establish the identity of either of the parties mentioned therein, appears twice in the record, first upon page 19 where it appears as Exhibit B, filed in the orphans' court with the plaintiff's petition, claiming to be the widow of George W. Bowman, and again on page 24, where a duplicate, certified 10 months later than the former, was filed with the depositions taken in New Jersey. In the copy, as transcribed in the opinion of the court, the residence of George W. Bowman is given as "Haleystown, Md."; but in both certificates is they appear in the record his residence is given as "Hagerstown, Md." It is true that in the plaintiff's petition she herself states that said residence was written "Haleystown," instead of "Hagerstown," in said certificate; but this averment is not sustained by either of the certificates set out in the record, and these certificates are not only better evidence than the averment of the petition, but the only evidence of their contents which can be accepted, in the absence of a specific agreement of the parties as to the alleged error therein. I allude to this here, because in the opinion of the court it is said that this certificate, for that reason, does not show that the George W. Bowman named therein was from Hagerstown, but does show that he was from Haleystown, and therefore, that he was not the same George W. Bowman whose estate is here in controversy. But, even if so written in the certificate, it being admitted without exception, I apprehend that alone would not deprive the jury of the right to consider the certificate, in connection with all the other evidence in the case tending to establish the identity of these parties, any more than would the fact that the certificate gives Catherine McGranigan's residence as "E. Harrisburg, Pa.," while her mother gives her residence as "Harrisburg, Pa." These slight discrepancies, or ambiguities, are at most but "contradictions," which under the rule in Jones v. Jones, supra, are for the decision of the jury, and not of the court. The certificate states...