Hoese v. Hoese

• Decision Date: 14 February 1928
• Docket Number: 38660
• Citation: Hoese v. Hoese, 205 Iowa 313, 217 N.W. 860 (Iowa 1928)
• Parties: EMMA LEOPOLD HOESE, Appellant, v. FRANK HOESE, Appellee
• Court: Iowa Supreme Court

217 N.W. 860

205 Iowa 313

EMMA LEOPOLD HOESE, Appellant, v. FRANK HOESE, Appellee

No. 38660

Supreme Court of Iowa, Des Moines

February 14, 1928

Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.

Suit by Emma Leopold Hoese against Frank Hoese for divorce and for $ 335,000 alimony. Plaintiff alleges a commonlaw marriage, the existence of which is the question litigated. Decree for defendant. Plaintiff appeals.

Affirmed.

John A McKenzie and Scott M. Ladd, for appellant.

Roseberry & Roseberry, for appellee.

MORLING J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.

OPINION

MORLING, J.

We find ourselves unable to hold that the plaintiff has proved a mutual agreement between herself and the defendant to presently assume toward each other the relationship of marriage. We shall, therefore, limit our discussion to the evidence bearing on this subject. For our more recent cases on the subject see In re Estate of Medford, 197 Iowa 76, 196 N.W. 728; Hess v. Hess, 191 Iowa 52, 181 N.W. 760; Love v. Love, 185 Iowa 930, 171 N.W. 257; Pegg v. Pegg, 138 Iowa 572, 115 N.W. 1027; Brisbin v. Huntington, 128 Iowa 166, 103 N.W. 144. Common-law marriages do exist. Concubinage also exists. That the plaintiff was employed at first by defendant as a housekeeper, that no public marriage ceremony was ever performed, that there was no public acknowledgement in any form of matrimonial relations, but that they maintained sexual relations with each other for at least twelve years (plaintiff claims nearly thirty), is admitted.

In the early part of 1894, defendant was engaged in working a large farm. He employed a variable number of hands, and had had a number of housekeepers. He was about 28 years old, single. Plaintiff had lived in Chicago, St. Paul, and Cincinnati. She was about 24 years old, had been married, but had deserted her husband. She testified that she was a widow on May 5, 1894. She had a three and a half-year old boy. Her family resided in defendant's vicinity. Through them defendant, about March 1, 1894, employed plaintiff as a housekeeper. Plaintiff and defendant had no acquaintance before that time. Plaintiff claims that, on May 5, 1894, she became defendant's common-law wife. She says that, just prior to that date, defendant began courting her, showing affection; that one night defendant insisted on getting in bed with her; that she resisted, and he apologized; that he began showing affection again, and one night, after mutual exhibition of affection:

"Finally he says, 'I want you to marry me.' * * * Finally I said, 'Well, I am willing to marry you.' * * * Then I asked him, 'When will we be married?' and he said, 'Well, we couldn't be married right away,' he said on account of his business affairs, he would have to keep it a secret. * * * He said for me to keep it a secret. I told him I thought we couldn't keep it a secret, and then, later on, I said, 'Maybe we can;' but I asked him where would we get married, and who would marry us. He said it wasn't necessary to have anybody marry us,--when we agreed to be married, we are married. Q. What did you say to that? A. I said I didn't think that looked right; I thought we ought to be married in a regular way. Q. What did he tell you about that, if he said anything further? A. He said that was all right; he said it was right,--he knew it was right. He says, 'We can have a ceremony performed later on, if we want to.' * * * We talked a long time that night about it. * * * I told him,--I said I didn't think that marriage was good. He said it was good, and he knew it was good, and he kept talking to me. Well, I thought the matter over. I thought whatever he said was all right. I had a lot of affection for him, and I says, 'Well,' I said, 'if it is all right with you, it is all right with me.' 'Well,' he says, 'then we are married. We agree to be married, and we are married right now.' Q. What did you say? A. I says, 'All right, then, we are married.' * * * We slept together that night after we had that arrangement. He slept in my bed for a while, then went over to his own."

The precision of language claimed by plaintiff to have been used by both of them thirty years before, each clearly expressing a present assumption of the marital status,--"we are married,"--arouses skepticism. According to the testimony of each of the parties, each was first approached by the other for the sexual purpose. Defendant says that their relations started with his finding her in his bed one night, and being invited by her to come in. There is not a word of evidence to show the exhibition of conjugal love or affection by either toward the other after the showing of affection which plaintiff claims to have occurred before she submitted. According to plaintiff's testimony, defendant's calls upon her were for sexual gratification. Plaintiff testifies:

"I occupied one room downstairs, and he the other. He would always call me into his bed, because my baby was in my bed. * * * Went to his bed whenever he called me."

Defendant, like a true son of Adam, says it was the woman who tempted him. It was always at her instance that they engaged in sexual intercourse. He denies that there was ever any talk of marriage. Parenthood seems never to have been considered. Plaintiff, in her petition in the breach of promise case later referred to, admits conception at six different times; but on her statement, they were not only not wanted, but were ended by illicit means. Plaintiff says that she was insisting repeatedly upon performance of a marriage ceremony; that an arrangement was made whereby, about June 12, 1894, the ceremony was to be performed at Sioux City. Her brother and sister were to go with her. She testifies that on that day defendant said he "got letter from his sister, if he married me, would have to pay all her money back, and she wouldn't let him have more money. * * * Said we couldn't be married now. May be later on." According to plaintiff's case, the one reason at all times given by defendant, and without specification, was, in substance, the same: "On account of his business affairs he would have to keep it a secret."

As will be seen, it is a part of plaintiff's case also that her alleged marriage to defendant was known to her mother, to her brother and his wife, and to her son, and that she proclaimed it to a supposed rival about 1906.

The brother testifies that he heard rumors, after plaintiff had been in defendant's employ about two months, complained about them to plaintiff and defendant, and insisted upon a public wedding; that he and his sister were invited by defendant to the ceremony, which was to have taken place June 12, 1894. He testifies to substantially the same reason given for postponing the ceremony as that given by plaintiff. He testifies to having seen plaintiff and defendant in bed together; that, in 1909, defendant occupied a room in his house, and plaintiff would come over about every other night and stay with him.

"Heard their conversations several times. Sometimes they got along all right for a week,--everything lovely,--then they would break out and have awful fuss again. Several times, heard them quarreling. Got pretty mad sometimes, and talked pretty loud. Wife and I could hear every bit of it, practically. Heard her say on different occasions she wanted public wedding. One time he says: 'We were married; you know we were married. Where you fell down, when you sued me for that breach of promise case. I beat you that time; I can beat you again * * *'"

Plaintiff was occupying an adjoining house. This brother says he figured they were married. A number of witnesses, apparently disinterested, testified to scurrilous statements made by this brother concerning the plaintiff, her history, and her relationship with the defendant. There is no foundation for the charge of immorality which he made against his sister save her relations with defendant, which in his evidence he now claims were matrimonial. The brother's wife testifies to observing and hearing the same things; that:

"She [plaintiff] continued to visit him [defendant] in his room; came two or three times a week; stayed about same length of time. * * * Ventilator in floor. Could at times hear distinctly what they said, if I listened. * * * Heard her say she would like a public wedding ceremony performed. He said it was all right; they had agreed to be man and wife, and they would be married later on,--have a wedding in the spring. Heard her say he should support her more than he had been. He said he wouldn't support her any more than he had been. * * * Would not have let them live together that way in my house, but for fact knew about secret marriage."

These occurrences are claimed to have been from 1909 to 1911. This witness also says that, on these occasions:

"Heard her talking about this secret agreement of marriage,--that they were man and wife, had agreed to be man and wife,--and that he should do more for her than he had been doing."

Plaintiff's son testified that he in early years slept with his mother; that, when he was 8 or 9 years old, he remembers his mother's being in Hoese's room part of the night.

"Heard them quarreling or talking quite loud one night. Heard mother say she wanted regular ceremony. Hoese said wasn't necessary; they were just as much married as any other man and wife. Referred to public marriage. * * * Next day went with Hoese to field; asked him if he was really married. He says, 'Where did you hear that? ' I said, 'I heard you quarreling last night in your room.' He says, 'We are married; don't say anything more about it.'"

Says he heard these quarrels once every two months. In 1920, the son while he and plaintiff were living at Omaha, called defen...