Jordan v. Missouri & Kansas Telephone Co.
| Decision Date | 01 February 1909 |
| Parties | JESSIE O. JORDAN, Respondent, v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
AFFIRMED.
Judgment affirmed.
T. F Ryan and Gleed, Ware & Gleed for appellant.
(1) The negligence pleaded was neither proved nor submitted to the jury, and there was therefore a fatal variance between the pleading and proof and plaintiff was permitted to recover upon negligence not pleaded. Raming v. Railway, 157 Mo. 447; Bohn v. Railway, 106 Mo. 429; O'Brien v. Steel Co., 100 Mo. 82; Current v Railway, 86 Mo. 62. (2) Deceased assumed the risk and was guilty of contributory negligence. Roberts v. Tel Co., 166 Mo. 370; Nicholds v. Glass Co., 126 Mo. 55; Epperson v. Postal Co., 155 Mo. 373; Peet v. Railway (Ia.), 55 N.W. 508; Smith v. Pierson (Minn.), 46 N.W. 49; Railway v. Hutchinson, 40 Kan. 51; Junior v. Power Co., 127 Mo. 79; Hollingsworth v. Biscuit Co., ___ Mo.App. ___, 88 S.W. 1118; Meechan v. Railway, ___ Mo.App. ___, 90 S.W. 102; Williams v. Railway, 119 Mo. 316; Thomas v. Railway, 109 Mo. 187; Lucy v. Hannibal Oil Co., 129 Mo. 40; Aldrich v. Furnace Co., 78 Mo. 559; Epperson v. Postal Tel. Co., 155 Mo. 373; Nicholds v. Glass Co., 126 Mo. 55; Bradley v. Railway, 138 Mo. 302; Glasscock v. Walker, 16 Mo.App. 657; Harrington v. Railway, 104 Mo.App. 663. (3) The only instruction under which the jury could return a verdict in this case told the jury that if it was Jordan's duty to go upon the pole in question, and if the wire was not insulated and therefore dangerous, and appellant knew or should have known of these facts, and Jordan was in the exercise of reasonable care, their verdict should be for plaintiff. This instruction was erroneous. Schlereth v. Railway, 96 Mo. 509; Tabler v. Railway, 93 Mo. 79; Dale v. Railway, 63 Mo. 455; Moore v. Mill Co., 55 Mo.App. 491. (4) The record shows that plaintiff was not the widow of deceased, and therefore cannot maintain this action. (5) To prove the statutory law of New York governing the effect of the interlocutory decree, plaintiff offered in evidence the decision of a New York court in the case of Pettit v. Pettit, 93 N.Y.S. 100. The court simply announced that he would read this over, and it was not read to the jury. It was not, therefore, in evidence, as foreign law must be proved like any other fact. Hartman v. Railway, 39 Mo.App. 88; Robertson v. Stead, 135 Mo. 135, 36 S.W. 610; R. S. 1899, secs. 1228, 1229, 1232, 1279. Moreover, that decision related to divorce suits, and not to suits to annul marriages for fraud. (6) The effect of the suit to annul the marriage and of the interlocutory decree therein must, therefore, be decided by the common law of Missouri. Warren v. Luck, 16 Mo. 102; Houghtaling v. Ball, 19 Mo. 84; Meyer v. McCabe, 73 Mo. 236; Morrissey v. Ferry Co., 47 Mo. 521; White v. Chaney, 20 Mo.App. 389; Roll v. St. Louis Co., 52 Mo.App. 60; McPike v. McPike, 111 Mo. 216; Benne v. Schnecko, 100 Mo. 250; State v. Clay, 13 S.W. 837; Burdict v. Railway, 123 Mo. 221; State v. Cooper, 103 Mo. 266. (7) An action to annul a marriage differs from an action for a divorce. A decree of nullity in the former action wipes out the marriage altogether, and after it the parties stand in all respects as if they had never been married. Bishop, Marriage and Divorce (5 Ed.), secs. 118, 294, 690; Chase v. Chase, 55 Me. 21; Meredith v. Meredith, 79 Mo.App. 636; Eichhoff v. Eichhoff (Colo.), 36 P. 11. (8) Even if Jordan's first marriage be held to have been void originally, the record shows a common law marriage. Warren v. Luck, 16 Mo. 102; Houghtaling v. Ball, 19 Mo. 84; Busch v. Busch, 81 Mo.App. 562; Fenton v. Reed, 4 Johns. 52, 4 Am. Dec. 244; Blanchard v. Lambert, 43 Iowa 228; State v. Cooper, 103 Mo. 266; Dyer v. Brannock, 66 Mo. 391; Richard v. Breahm, 73 Pa. St. 140; Hays v. People, 25 N.Y. 390; Leister v. Moore, 96 U.S. 76. (9) The instruction of the court that if a ceremony of marriage was performed between plaintiff and deceased she was his wife, was erroneous in that it took from the jury all question as to the existence of the New York law, all question of a common law marriage, and every other question of fact. This was error. Dowling v. Allen & Co., 88 Mo. 293; Merritt v. Gibbon, 34 Mo. 98; Merriwether v. Cable Co., 45 Mo. 528.
J. W. Mytton and Chas. C. Crow for respondents.
(1) A void marriage is distinguished from a voidable marriage in that it cannot be ratified by cohabitation, agreement or actions of the parties, and requires no decree of annullment. Williams v. State, 45 Ala. 24; Patterson v. Hames, 47 U.S. 550; Drummond v. Irish, 52 Iowa 41; Dare v. Dare, 52 N.J.Eq. 195; 19 Ency. of Law, 1209, 1210. (2) A marriage which is merely voidable is valid for all civil purposes until its annullment has been pronounced by a proper tribunal. State v. Combe, 86 Wis. 498, cases there cited; Farley v. Farley, 94 Ala. 501; 1 Bishop on Marriage, Divorce and Separation, secs. 272, 1510; 19 Ency. Law, 1210, 1211; Griffith v. Smith, 1 Pa. Law J. 479; Smith v. Morehead, 59 N.C. 360; Tompert v. Tompert, 76 Ky. 326; 2 Revised Statutes N. Y., 1852, p. 321, secs. 3, 4; 1 Revised Statutes, Codes and General Laws of the State of N. Y. (3 Ed.), p. 1042; Wilson v. Jackson, 10 Mo. 336; Rae v. Hulbert, 17 Ill. 572; Bock v. Lauman, 24 Pa. St. 445; State v. Hinchman, 27 Pa. St. 479; Payne v. Insurance Co., 11 R. I. 411; Trowbridge v. Spinning, 23 Wash. 48, 68 P. 125, 54 L. R. A. 204. (3) Marriage as known to the common law is prohibited in the State of New York. Pettitt v. Pettitt, 93 N.Y.S. 1001. (4) In this case the deceased was a telephone lineman and his duties did not require him to know the dangers or condition of electric wires, and there was no evidence that he was familiar with the dangers or conditions of electric wires, and there is no evidence that he even knew that the wire that caused his death was exposed. The only danger that deceased was warned against or was expected to guard himself against was electricity in the telephone wires. Under these facts defendant is clearly liable. Barto v. Telephone Co., 126 Iowa 241, 101 N.W. 876; Curtis v. McNair, 173 Mo. 280. (5) Clearly the place where deceased was required to perform his duties with the uninsulated wire attached to the pole was unsafe, and the telephone company necessarily knew that deceased was ignorant of the danger, as it knew that it was no part of his duty to know such conditions and it is therefore clearly liable to plaintiff for furnishing her husband an unsafe place to work. It was certainly no part of deceased's duty to guard against a danger of which the telephone company knew him to be wholly ignorant. Browning v. Kasten, 107 Mo.App. 59; Chambers v. Chesters, 172 Mo. 464; Harriman v. Star Co., 81 Mo.App. 124; Devore v. Railway, 86 Mo.App. 429; Minnier v. Railway, 167 Mo. 99; Dean v. Waterworks, 106 Mo.App. 167.
The plaintiff, claiming to be the widow of Conrad A. Jordan, brought this action for damages on account of his death, occurring while in defendant's employment, and, as is charged, through defendant's negligence. The judgment in the trial court was for the plaintiff.
Defendant denied that plaintiff was Jordan's widow, and placed its denial on the ground that at the time of the ceremony of marriage between them Jordan had a living wife from whom he had not been divorced, and, under the statute (section 4313, Revised Statutes 1899) such marriage was void.
The following facts developed at the trial: Jordan and Ethel Hannah lived in the State of New York. Ethel married Thomas Meskill, and thereafter discovering that he had concealed from her that he had a bad disease at the time of their marriage, she brought an action in the proper court in New York to annul the marriage on account of the fraud of Meskill in thus concealing his loathsome disease, which, it seems, may be done in that State. An interlocutory decree was entered for her on the 1st of November, 1902, and a final decree was entered on the 27th of February, 1903. After the interlocutory decree, but before the final decree, viz., some time in the month of November, Jordan and Ethel went into the State of New Jersey and were married, that is, they had a marriage ceremony performed and then immediately returned to New York. They lived together for some months, until August, 1903. Jordan then came out to St. Louis, in this State, and on the following 16th of March, 1904, he and plaintiff were married in that city.
If the marriage between Jordan and Ethel Meskill was a valid marriage, then Jordan and this plaintiff's marriage was void, for the case shows that Ethel was then alive and no divorce had been obtained. So the parties hereto join issue on the validity of the former marriage. Plaintiff insists that it having taken place before the final decree in Ethel's favor annulling her marriage with Thomas Meskill, she had a living husband at the time and her marriage with Jordan was an idle and unlawful ceremony and void; while defendant contends that the interlocutory decree was a sufficient annulment of the Meskill marriage to make the marriage of Ethel to Jordan valid, or, if not, the final decree afterwards pronounced related back to the date of the marriage and made it void from the beginning.
To concede that a void marriage (as, for instance, where one of the parties was already a married person), may be disregarded and another marriage had without annulling the void one, the concession would not aid the defendant in its contention that Jordan's marriage with Ethel was valid. For, her marriage to Meskill was not void; it was merely voidable; and there is a vast difference between the two...
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