Klein v. Laudman

• Decision Date: 31 January 1860
• Citation: 29 Mo. 259
• Parties: KLEIN & WIFE, Plaintiffs in Error, v. LAUDMAN & WIFE, Defendants in Error.
• Court: Missouri Supreme Court

29 Mo. 259

KLEIN & WIFE, Plaintiffs in Error,

v.LAUDMAN & WIFE, Defendants in Error.

Supreme Court of Missouri.

January Term, 1860.

1.Though there is a presumption of law that a fact continuous in its nature, such as marriage, continues after its existence is once shown, yet this presumption should not be permitted to overthrow the presumption of law in favor of innocence.

2.A. and B. as husband and wife sued C. in an action of slander for words spoken.They proved their marriage.Declarations made by the wife of B., to the effect that previous to her marriage to A. she had been married in Germany to another man, were admitted in evidence in favor of C. to show the marriage with A. invalid.Held, that the law, under such circumstances, would presume in favor of the innocence of B. in contracting the second marriage, that the first marriage had been dissolved by death or decree of divorce.

3.Quere, whether the declarations of the wife would be admissible in such case to prove the former marriage.

Error to Cooper Court of Common Pleas.

This was an action by Leonard Klein and Margaret Klein his wife, against Jacob Laudman and Christina Laudman his wife, for slanderous words spoken of and concerning the plaintiffMargaret Klein.The defendants in their answer denied the speaking of the alleged words, and also stated that they had “no knowledge or information sufficient to enable them to form a belief whether the plaintiffs are husband and wife as alleged.”At the trial the plaintiffs introduced in evidence a certificate of marriage showing that they had intermarried August 19, 1843.The slanderous words were also proven.The defendants introduced in evidence, against the objections of plaintiffs, declarations made by the plaintiffMargaret Klein, that previous to her marriage with the plaintiffLeonard Klein, she had been married in Germany to another man.The plaintiffs offered to prove by parol evidence that said former marriage had been legally annulled and dissolved in Germany previous to the marriage of plaintiffs.The court refused to admit the testimony.The court gave the following instruction at the instance of defendants: “1.If the jury find from the evidence that the plaintiffMargaret Klein was married in Germany to another person than Leonard Klein, the plaintiff, then such relation is presumed to continue; and it devolves upon the plaintiffs to prove to the satisfaction of the jury that such marriage was legally terminated before the date of the marriage certificate, read in evidence, or they can not recover.”Other instructions were given and refused.The jury found for defendants.

Douglass & Hayden, for plaintiffs in error.

I.The evidence of the former marriage of Margaret Klein was inadmissible.The pleadings presented no such issue.The answer does not specifically deny the fact that plaintiffs are husband and wife.If there was a misjoinder of parties, the defendants should have resorted to a plea in the nature of a plea in abatement.(1 Leigh, 64;1 Chitt. Pl. 434-48, 742;1 Bac. Abr. 19;7 Id. 542-548, 595.)It was overruled by pleading to the merits.(Stephen on Pl. 477; 1 Chitt.Pl. 426;13 Mo. 547;17 Mo. 345.)The evidence of a former marriage took plaintiffs completely by surprise.They came prepared to prove the issues.(See1 Amer. Lea. Cas. 178;16 Verm. 516;Voorhies' N. Y. Code, 195;17 Mo. 360;21 Mo. 432.)The first instruction given for the defendants should have been refused; it is erroneous.If evidence of the former marriage was admissible, then plaintiffs had a right to show by parol that said former marriage had been dissolved by divorce.The court erred in excluding the evidence offered.The judgment or decree of divorce, or a certified copy of it, could not be in the possession or power of plaintiffs.Nor is that judgment or decree, or a certified copy of it, legally attainable by them.(6 Pet. 352;9 Mo. 443;1 Greenl. Ev. § 82;1 Pet. 591;7 Pet. 99;3 Monr. 532.)

J. A. & J. H. Hening, for defendants in error.

I.There was no error in admitting the evidence of a previous marriage.The defendants were bound to set up the former marriage in their answer.They could not separately plead the fact in abatement.(10 How. Prac. R. 40, 164;5 Sandf.210.)The court committed no error in refusing to permit plaintiffs to prove by parol a divorce in Germany.The record of the divorce should have been produced if any existed.(1 Greenl. Ev. § 514, 488;2 Cranch, 238;2 Wend. 411;6 Wend. 575.)

NAPTON, Judge, delivered the opinion of the court.

We think the first instruction which the court gave, in this case, at the instance of the defendants, was erroneous.There was no presumption that a marriage, which was proved to have existed at one time in Germany, continued to exist here after positive proof of a second marriage de facto here.The presumption of law is, that the conduct of parties is in conformity to law, until the contrary is shown.That a fact, continuous in its nature, will be presumed to continue after its existence is once shown, is a presumption which ought not to be allowed to overthrow another presumption, of equal if not greater force, in favor of innocence.The fact of a marriage in Germany, which was established in this case by the declarations of one of the plaintiffs, was entirely consistent with the validity of the marriage de facto, which, beyond all dispute,...