Bowman v. Little

• Decision Date: 03 October 1905
• Parties: BOWMAN v. LITTLE et al.
• Court: Maryland Court of Appeals

61 A. 1084

101 Md. 273

BOWMAN v. LITTLE et al.

Court of Appeals of Maryland

October 3, 1905

Supplemental opinion. For original opinion, see 61 A. 223.

McSHERRY C.J.

I saw this morning, in the Daily Record of last Friday and Saturday, the dissenting opinion of Judge PEARCE in the case of Bowman v. Little, 61 A. 657, and, as it is likely that I failed to be as explicit as I ought to have been in the reasoning employed and the conclusions expressed in the opinion of the majority of the court in the same case (61 A 223), I think I should restate some of the principles which I believe must be kept constantly in mind, so that, whilst the exact situation presented by the record is remembered, the precise things decided, in view of that situation, may not be understood.

In the beginning of the dissenting opinion the following sentences occur: "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." Now, the precise inquiry with which the majority opinion dealt was, as stated in that opinion, "What kind of evidence is necessary to establish that status or relation [the alleged New Jersey marriage], and of what probative value should it be, when the consequences incident to the sustentation of the alleged marriage of July, 1887, must inevitably be the branding of the deceased with the crime of bigamy, and the bastardizing of the innocent offspring of the marriage of 1900?" It was with reference to that situation, thus presented, that the inquiry was made as to what kind of evidence was requisite to establish an alleged antecedent marriage, and as to what quality or probative value that evidence should possess, and it was not in relation to the simple issue of marriage vel non or legitimacy vel non, as in Jones v Jones, 45 Md. 144. The controlling question was whether there was any legally sufficient evidence to go to the jury in the circumstances of this case to establish the identity of the persons named in the New Jersey marriage certificate. It was therefore a question of the legal sufficiency of the evidence, and not of its admissibility or its weight when contrasted with conflicting evidence. Evidence may be admissible to prove a fact, and yet, when admitted, may be legally insufficient to prove the fact which it was introduced to prove. When it tends to prove the fact, it is for the jury to say whether it does prove it. When it is legally insufficient to prove the fact, it is the duty of the court, upon request, to instruct the jury to that effect. The standard or measure by which the legal sufficiency of evidence is ascertained is not unvarying and inflexible, and hence is not the same in every case. That which would be legally sufficient evidence to establish a marriage, when nothing but the mere question of marriage vel non is presented, would not necessarily be legally sufficient to establish a prior marriage, when the consequence incident to upholding the latter would be to convict one of the parties of crime or to bastardize the offspring of a subsequent marriage, because the conditions are essentially different, and because in the one instance there may, and most likely would, be no presumptions either in favor of or against a marriage, whilst in the other there will always be most important presumptions in favor of innocence and legitimacy. These latter presumptions, which invariably arise in a case like the present one, must be overthrown by legally sufficient evidence before there can be said to be any legally sufficient evidence of the alleged first marriage to go to the jury; and it is always a question of law for the court to determine whether any legally sufficient evidence has been adduced to destroy those strong presumptions. In so deciding, the court does not invade the province of the jury, because the province of the jury is only to weigh and pass upon such evidence as the court shall determine to be legally sufficient, if true, to establish the fact to be proved. Now, the whole trend of the argument in the majority opinion showed, or was intended to show, that the entire evidence offered by the plaintiff on the subject of personal identity consisted merely of a series of probabilities; that no number of probabilities could constitute "strict proof," because the sum total of them all would at best be itself only a probability, which was not equivalent to a moral certainty, and which, because only a probability, could never wholly exclude the opposite probability; that this mere probability could not contravene the presumptions of innocence and legitimacy arising from the undoubted fact of the second marriage, for these presumptions outweighed a mere probability; and, therefore, that it (the mere probability) furnished no legally sufficient evidence to go to the jury to prove the first marriage.

The majority opinion dealt only with conjectural probabilities, which, in the absence of anything of greater probative value, were assumed, ex gratia argumenti, to be inferable from the facts stated in the record. It was not denied, and it is not now doubted, that it is possible those people were married at Camden, as the plaintiff insists in her petition. But a possibility must not be confounded with a probability, because probability belongs, not to things, but to our calculations about things, whilst possibility is of the essence of things. The probable is always possible, but the improbable is equally so, and the possible may be probable or improbable; that is, may or may not happen. As possibility, in so far as it is nothing but a potentiality until it ceases to be a mere possibility and becomes a reality, has no probative value whatever, courts cannot regard a bare possibility as an evidentiary fact. As the requirement demanding "strict proof" could not be gratified by furnishing evidence which established nothing more than a mere probability, and as a bare possibility has no probative value, the presumptions of innocence and legitimacy prevailed as a matter of law, and left nothing contravening them for the jury to consider. The legally insufficient evidence, because legally insufficient, created no conflict between itself and the existing presumptions, and hence there was nothing to carry the question of personal identity to the jury.

In the dissenting opinion this supposititious case is put "Suppose that there was no allegation of a second marriage in this case, but that there was issue of the alleged marriage with Catharine McGranigan, and that Clyde B. Furst, the nephew of the deceased, who, in that situation, would be entitled to the whole of his personal estate, if the marriage with Catharine McGranigan were not established, was seeking to withdraw the case from the jury upon the question of the identity of the parties upon the same testimony given here. If he should succeed in that effort, the result would be to bastardize the innocent issue of that alleged marriage. Can it be supposed that in such case the court would say there was no evidence legally sufficient to prove the identity of the parties to that marriage?" I answer, most unquestionably in that supposed case the court could not declare the evidence of identity to be legally insufficient, because that evidence would be in harmony with and in support of the legal...