Cole v. Cole

• Decision Date: 12 October 1920
• Parties: COLE v. COLE.
• Court: Oregon Supreme Court

192 P. 637

97 Or. 555

COLE v. COLE.

Supreme Court of Oregon

October 12, 1920

In Banc.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suit to annul marriage by Lu Elsie Cole against Robert Cole. From decree for defendant, plaintiff appeals. Affirmed.

This is a suit to annul a marriage on the ground of duress. The material allegations of the complaint are in substance as follows: That on or about the hour of 10:30 o'clock p. m on the 6th day of March, 1918, in the city of Portland, Or and in the immediate vicinity where plaintiff was then residing, the defendant approached the plaintiff, and by force and threats of bodily injury and death compelled the plaintiff to enter an automobile operated by the defendant and immediately thereafter the defendant drove said automobile to the city of Oregon City, Or., and then and there, by continuous threats of injury to the plaintiff, forced the plaintiff to accompany him about said city for the purpose of securing a marriage license, in which the defendant failed to succeed, and thereafter and during the hour of midnight of said and the succeeding day the defendant, by force, compelled the plaintiff to return to the city of Portland, and to spend the night with him in that certain hotel commonly known as the Clifford Hotel; that on the following day, by continued force and threats, defendant forced the plaintiff to again accompany him to Oregon City, and after being unable to secure a marriage license compelled plaintiff to return with him to Portland, where the defendant secured two persons to act as witnesses to a marriage license, and immediately after securing a marriage license the defendant forced the plaintiff to marry him in said city of Portland; that immediately after said marriage ceremony the defendant again forced the plaintiff into his automobile and to accompany him to the city of Salem, Or., and to remain with him in a hotel during the night of said day; that on the following day the defendant again forced the plaintiff to accompany him in said automobile to the city of Vancouver, Wash., and to spend the night of said day in a hotel in said city of Vancouver; that on the following day, by said force and threats, the defendant compelled the plaintiff to return with him to Portland, and to remain with him said day and night and the following day and night at the aforesaid Clifford Hotel; that on the succeeding day the defendant, by force and threats, compelled the plaintiff to accompany him to the city of St. Helens, Or., and to spend the night of said date at the home of H. C. McCormick, a relative and friend of the defendant; that on the subsequent morning the defendant forced the plaintiff to accompany him about the city and vicinity of St. Helens; that in the afternoon of said date the plaintiff succeeded in liberating herself from the force and influence of the defendant, and returned to her said home in Portland, where the plaintiff has ever since resided, separate and apart from the defendant; that said marriage was consented to by the plaintiff for the sole purpose of saving her life and that of her fiancé; that the defendant on the 6th day of March, 1918, and on prior occasions, and during all the times herein mentioned, threatened the plaintiff that, unless she would consent to marry him, he would kill her and her fiancé; that the defendant knew on said 6th day of March, 1918, and prior thereto, that the plaintiff was engaged to be married; that at the time the defendant forced the plaintiff for the first time into his said automobile he threatened the plaintiff that, if she ever left or attempted to leave him or his said automobile without his knowledge or consent, he would kill her upon sight, which threats were repeated frequently during all of the times herein mentioned; that the plaintiff was afraid of the defendant, and believed that he would kill her if she made any attempt to liberate herself, and while laboring under said belief, force, and threats consented to said marriage and to accompany the defendant to the places aforesaid, and to cohabit with him.

The answer denied the charges of force and threats and contained a plea of former adjudication, which it is unnecessary to advert to further.

G. G. Smith, of Portland, for appellant.

Frederic H. Whitfield, of Portland, and Glen R. Metsker, of St. Helens, for respondent.

McBRIDE C.J. (after stating the facts as above).

The charges of threats and force are utterly unsustained by any testimony, except that of plaintiff. They are vigorously denied by the defendant, and there is not a single circumstance in the case to support her testimony, except the fact that a week after the ceremony she left the defendant during his absence and returned with her relatives and a former lover to Portland.

A large number of letters passed between the parties before the marriage, all breathing undying love for each other, and freighted with paper kisses, and pen and ink embraces, indicating that the plaintiff was doing at least her share of the courtship. About March 1, 1918, she wrote defendant a letter, urging him to come from St. Helens to Portland. In all of this correspondence, which is in the usual exuberant style of infatuated lovers, the defendant called himself "Daddy," and the plaintiff assumed the nom de plume of "Daughter," although the letters themselves are anything but daughterly or fatherly.

According to plaintiff's statement, she was engaged to one Johnson, and had promised to marry him about March 9, 1918; but her letters indicate that she had been weighing the attractions of her two admirers, with a decided preponderance of affection for defendant. The letter of March 1, above alluded to, is as follows:

"My Dear Daddy: Received your letter a few days ago and was sure glad to hear from you once more. I had begun to think you were angry at me, but see I am mistaken.

"J. has been watching me very closely lately and this is the first chance I have had to write to you, and he has certainly surprised me too. He has his 'shack' furnished grand and expects me to move in it in a few days and I am not a bit enthusiastic over it. Maybe you will think I am a very ungrateful person, but I have been thinking too much of my Daddy and me wants you to come right away cause if you don't it will be too late. Please don't mention geting this letter to any one that might see J. and tell him about it, because he would sure cause some trouble if he thought I wrote to you at any time much less now. He knows of me writing one letter to you so be careful. We both have to be careful as you know how all the folks have talked and acted while I was down at St. Helens.

"Hope you will be ready to come as soon as you receive this. Could you go to the hotel I mentioned before in one of my letters and then you can call me (Main 4864) or I call you. If I don't happen to be in when you first call just leave your number. Don't call long distance or leave your name as the landlady tells all she hears.

"With lots of love and kisses, from your

"Daughter."

In answer the defendant wrote as follows, the date being uncertain:

"My Dearest Daughter: Received your startling letter to-night and sure was surprised to hear how things are going with you.

"Dearest girlie, if you love me wait until Wednesday night as I cannot get away before that, but sure will be up Wednesday night and will go to the same hotel I stopped at the first time we came to Portland.

"For the love of Pete don't do anything you will be sorry for later for daddy is coming up to you just as fast as he can, but he cannot get away now as he is working on one of the dynamos and cannot get away, but sweetheart if you are afraid to wait come on down here and we can get married and settle all the trouble at once.

"Honey girl please wait until I can come up to you, for I surely would come right to-night if it was not a question of putting the lights out in town, why could not this come up some other time but just now, for I would be on my way to you now, instead of writing this letter.

"I would telephone to you, but you said no and this is the only way I can reach you.

"Sweetheart write and tell me you are waiting for daddy will worry his head off until he hears from you again, so dearest please write and tell him you are his yet.

"Gee I feel so bad about not being able to come to you that I can not think straight, so I will close, hoping all the time you are waiting for daddy, or if you cannot wait you will come down here to him never to leave him again, for daddy sure does want you more than ever tonight and will worry all the time until he hears from you, or better luck sees you,

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