Hartman v. Valier & Spies Milling Co.

• Decision Date: 21 April 1947
• Docket Number: 40071
• Citation: 202 S.W.2d 1,356 Mo. 424
• Parties: Myrtle Margett Hartman v. Valier & Spies Milling Company and Continental Casualty Company, Appellants
• Court: Missouri Supreme Court

202 S.W.2d 1

356 Mo. 424

Myrtle Margett Hartman v. Valier & Spies Milling Company and Continental Casualty Company, Appellants

No. 40071

Supreme Court of Missouri

April 21, 1947

Motion for Rehearing or to Transfer to Banc Overruled May 12, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Albert I. Graff and Malcolm I. Frank for appellants.

(1) No presumption of marriage exists where it is shown the alleged marriage is illegal, nor can such presumptions exist in favor of claimant when she testifies as to the facts of the alleged marriage ceremony. Bowman v. Little, 101 Md. 273, 61 A. 223; In re Elliott's Estate, 165 Cal. 339 132 P. 439; Blackburn v. Crawford, 6 Wall. 175, 18 L.Ed. 186; 38 C.J., p. 1325, sec. 99, p. 1327, sec. 101; Mackowick v. Kansas City, etc., Railroad, 196 Mo 550, 94 S.W. 256; Randazzo v. Randazzo, 236 S.W. 1061. (2) The presumption in favor of marriage can be overcome by negative evidence which is clear and conclusive, such evidence being the best proof of which the case is susceptible. Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80, 83; Johnson v. Railway, 203 Mo. 381, 101 S.W. 641; Woods v. American Coal & Ice Co., 25 S.W.2d 144; In re Findlay, 253 N.Y. 1, 170 N.E. 471; Mackowick v. Kansas City, etc., Railroad, 196 Mo. 550, 94 S.W. 256. (3) The testimony of claimant and her witness Mrs. McClure contained so many obvious misstatements and contradictions and self-contradictions, so as to affect their credibility. Thereby the Commission, taking into consideration all the negative evidence, was justified in not believing their testimony under the law, and their decision was proper on the whole record. O'Neil v. Fred Evens Motor Co., 160 S.W.2d 775; Wood v. Wagner Elec. Corp., No. 39,927, 355 Mo. 670.

Boyle, Priest & Elliott and G. T. Priest for respondent.

(1) In cases of this character on appeal, it is the duty of the court to examine the evidence and to determine whether the award of the Commission, as made, is supported by sufficient competent evidence of sufficient probative value to sustain the award, and if there is not such evidence to support the award, the award must be reversed, even though there may be some evidence which supports the award but which is of such a character as to be lacking in probative force, in which event the award may not be said to be supported by sufficient competent evidence. Palm v. Southwest Mo. Wholesale Liquor Co., 176 S.W.2d 528; Hartzell v. Sloan, 111 S.W.2d 942; Yancey v. Egyptian Tie & Timber Co., 95 S.W.2d 1230; Stepaneck v. Mark Twain Hotel, 104 S.W.2d 761. (2) As a result of the doctrine that all presumptions are in favor of marriage, the invalidity of the marriage cannot be established like any other question of fact, and every presumption must be overcome by satisfactory proof. The burden of proof is always on the party attacking the validity of the marriage. The party having the burden of proof must overcome every presumption in favor of the validity of the marriage. Osmak v. American Car & Foundry Co., 40 S.W.2d 714; Griggs v. Pullman Co., 40 S.W.2d 463; Maier v. Brock, 222 Mo. 74; Thomson v. Thomson, 236 Mo.App. 1223. (3) The unimpeached testimony of Mrs. Hartman and Mrs. McClure, admittedly true, that Mr. and Mrs. Hartman were married and lived openly as husband and wife, known to the public as such, and the designation by Mr. Hartman in his two applications for life insurance to the Reliable Life Insurance Company, and upon which that Company issued life insurance to Mr. Hartman, establishes the legality and validity of the marriage of Mr. and Mrs. Hartman, and casts the burden of proof upon the Insurance Company to disprove it by clear, cogent, convincing and conclusive evidence Thomson v. Thomson, 236 Mo.App. 1223. (4) There isn't a scintilla of evidence that was introduced by the Insurance Company that even remotely tends to impeach the validity of Mr. and Mrs. Hartman's marriage and the Commission's award was not supported by sufficient competent evidence, clear, cogent, convincing and conclusive in character. Thomson v. Thomson, 236 Mo.App. 1223. (5) The failure of Mrs. Hartman to produce a license purported to have been issued by the Clerk at Belleville constitutes no evidence of the invalidity of the marriage. Thomson v. Thomson, 236 Mo.App. l.c. 1231; State v. Eden, 350 Mo. 932; People v. Reynolds, 217 Ill. 577. (6) Under Illinois law failure to secure a license for marriage does not render the marriage void. Cartwright v. McGown, 121 Ill. l.c. 398; Harris v. Harris, 8 Ill.App. 57. (7) Failure to secure a medical examination in accordance with the Illinois statute does not render the marriage void. The statute is only directory. Boysen v. Boysen, 301 Ill.App. 573. (8) The evidence in this case is sufficient to conclusively establish the validity of the marriage of Mr. and Mrs. Hartman under the Illinois law. Western Coal Co. v. Industrial Commission, 296 Ill. 408; Murrelle v. Industrial Commission, 382 Ill. 128.

OPINION

Ellison, J.

The defendant Milling Company appeals from a judgment of the circuit court of the City of St. Louis reversing a finding and award of the Workmen's Compensation Commission in favor of it and its insurer, and against the claimant-respondent. The Commission had found there was not sufficient competent evidence to support respondent's claim for compensation as widow and sole dependent of Thomas A. Hartman, who admittedly was killed on January 14, 1945, by accident arising out of and in the course of his employment by appellant.

The ground of the Commission's finding was that respondent's evidence failed to prove she had previously been married to the deceased, in consequence of which she could not be his widow and dependent. The circuit court found to the contrary -- that the appellant's evidence was insufficient to overcome the presumption of law in favor of respondent's marriage to the deceased. The sole question all the way through the case was marriage vel non. Appellant's brief splits this issue into two parts: (1) was a marriage ceremony performed between the respondent and the deceased at Belleville, Illinois on September 17, 1942, as she testified? (2) is there a presumption of law in favor of marriage in the case of a compensation claim such as this?

First as to the facts, stated chronologically. The respondent testified she had been married once before in July, 1931, she thought, to H. B. Hidy, from which marriage two daughters were born, aged respectively 18 and 22 years at the time of the trial on May 28, 1945, which would make the year of their births respectively 1927 and 1923. Hidy divorced her in St. Louis, she testified, because she could not afford to bring the suit herself. She produced a copy of the divorce decree, but it is not preserved in the record. She said she first met her (later) deceased husband, Hartman, in Platte City in 1940 or 1941, while he was working for the Government at a Veterans' Camp. She was living in Platte City then, doing laundry work for the men in that camp. After nine or ten months the camp was moved to Wentzville, Missouri, and Hartman went with it. She moved to Kansas City.

Thereafter, Hartman would come back to visit her in Kansas City over week ends, staying at a hotel. Over a month before their marriage she moved to St. Louis and continued to do laundry work for the men in the camp at Wentzville, which is about 40 miles from St. Louis. With reference to her engagement of marriage with Hartman, she testified:

"Q. Now, will you tell us the circumstances of your marriage to Mr. Hartman? A. The circumstances?

"Q. Yes. A. Well he was working at Wentzville at the time and he came home one afternoon and he said, 'well, lets get married,' and it was on a Saturday and --

"Commissioner Lahey: 'Wentzville, is that Wentzville, Missouri?'

"The Witness: 'Yes, that's Wentzville, Missouri. He said: 'Honey, I have a license, let's go and get married.' He said he wanted to go over to Illinois and get married. I said, 'Why do you want to go to Illinois?' And he said that he bought the license there and wanted to go to Illinois to get married. Therefore that is the reason we went to Belleville, Illinois."

On cross-examination respondent testified that she didn't mean Hartman proposed marriage to her at Wentzville; that they had previously become engaged while she was living in Kansas City, on one of his numerous trips back there. And the incident narrated in the last paragraph as having occurred in Wentzville was simply Hartman's proposal to act on the engagement and have the marriage ceremony performed in Illinois. The conversation occurred in her home in St. Louis, not at Wentzville. He had theretofore been married and divorced and had two sons (or so told her) -- indeed had grandchildren. He had lived in Illinos in former years, and his two sons still lived there. But none of Hartman's relatives attended his wedding to respondent in Belleville.

Respondent testified her friends Mr. and Mrs. McClure accompanied her and Hartman on the trip to Belleville in the latter's automobile. Mr. McClure was a "buddie" of Hartman's, both having worked in the Platte City and Wentzville Veterans' Camps. He was not called as a witness. Mrs. McClure had known respondent for five years, at Platte City and before that. On further cross-examination respondent said the reason she and Hartman went to Belleville to be married was, that she had known the pastor of a Pentecostal Church in that city, named Johnson, who had been stationed in Harrisonville, Missouri when she lived there during her first marriage; and a lady friend of her's had told her that Mr. Johnson was in...