Maier v. Brock

• Citation: 120 S.W. 1167,222 Mo. 74
• Parties: MAIER v. BROCK et al.
• Decision Date: 01 July 1909
• Court: United States State Supreme Court of Missouri

120 S.W. 1167

222 Mo. 74

MAIER v. BROCK et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. MARRIAGE (§ 40)—EVIDENCE — PRESUMPTIONS.

Where plaintiff was married in Germany on January 24, 1865, and lived with her husband until the spring of 1866, when the husband came to this country, where he was married three times before his death, it will be presumed that the German marriage was annulled by divorce before he was married in this country, even though his first wife is still living and the marriage with her has not been dissolved in the jurisdiction where she lived.

2. NAMES (§ 16)—"IDEM SONANS."

Names are "idem sonans" if the attentive listener finds difficulty in distinguishing them when pronounced, or common or long-continued usage has, by corruption or abbreviation, given them the same pronunciation, even though they are spelled differently, and the German name "Josef Maier" is idem sonans with the Americanized spelling thereof, "Joseph Meyer."

3. MARRIAGE (§ 40)—EVIDENCE—SUFFICIENCY TO OVERCOME PRESUMPTION OF DIVORCE.

In an action for an assignment of dower by decedent's first wife, who was married to him in Germany, after which decedent came to this country and was again married three times, evidence held not to overcome the presumption that decedent was divorced from plaintiff before he was again married in this country.

4. MARRIAGE (§ 40) — VALIDITY — PRESUMPTIONS.

The law presumes that a marriage is valid, and the burden is on those claiming the contrary to show it by a strong and persuasive evidence, the presumption being one of the strongest known to law.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Barbara Maier against T. W. Brock and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff brought this suit, for the assignment of dower, in the circuit court of Jasper county. The petition was in the usual form. The answer was a general denial, and a plea that plaintiff was an alien, a resident of Germany, and had never resided in this country. The reply was a general denial of the new matter contained in the answer.

The evidence showed that plaintiff was married to one Josef Maier on January 24, 1865, in the empire of Germany, and that they lived together as man and wife until the spring of 1866, when he left her and came to the United States. Shortly after he reached this country she heard from him once, but no more until the year 1885, when he visited his old home in Germany, when she went to see him, and there saw him for the last time. He was known in this country by the name of Joseph G. Meyer. She never knew of his using any other name than that of Josef Maier, and heard of his death, in Carthage, Mo., through a report of a life insurance company which had issued a policy on his life.

There was considerable evidence introduced tending to show that Josef Maier and Joseph G. Meyer were one and the same person, but as there is practically no dispute but what they were one and the same person, it would be useless to burden this statement with a copy of that evidence. Plaintiff never remarried, and remained true to her marital vows.

Joseph G. Meyer died in Jasper county, February 3, 1904, seised of the real estate described in the petition. He went to that county some time between the years 1872 and 1874, and took with him a second wife, who lived with him on this farm until her death. On March 12, 1885, he married Marie Balduff, in the city of St. Louis, and lived with her on this land until her death. Of that marriage two daughters were born, who were grown young ladies at the time of the trial of this cause. He then married a woman by the name of Cumberledge, from whom he was divorced; and subsequent thereto, on January 17, 1902, he married Nora Carl, of Jasper county, and lived with her until his death, and of which marriage a posthumous child was born. No one in this country ever heard of his having been married in Germany until this suit was brought. Meyer was a German-born citizen, and had never applied for naturalization in Jasper county. This record shows that he had been an industrious, hard-working, good citizen while he lived in this state, but it fails to show where he lived from the time he came to this country, in 1866, up to the time he went to Jasper county.

No instructions were asked or given. The court found for the defendants, and plaintiff appealed.

Henry Leist and Thomas & Hackney, for appellant. McReynolds & Halliburton, for respondents.

WOODSON, J. (after stating the facts as above).

There can be no serious question, in the light of the evidence preserved in this record, but what Joseph G. Meyer, mentioned in the evidence, was one and the same person who married the appellant in Germany in the year 1865, under the name of Josef Maier; nor can there be any question but what he was married at least three times subsequent to his coming to this state, and presumably once before that date. Upon these facts rests the main legal proposition involved in this case. Counsel for respondents contend that the subsequent marriages in this country raised a presumption that Joseph G. Meyer was divorced from appellant after coming to this country and prior to his said marriages in this state.

This question has been so recently and so ably discussed by Judge Graves, in the case of Johnson v. Railway, 203 Mo. 381, 101 S. W. 641, I feel it would be a useless waste of time for me to do more than quote from his opinion what he said upon this question. The question involved in this case is identical with the one which was involved there. On page 402 of 203 Mo., and page 646 of 101 S. W., he uses this language:

"By this instruction, when applied to the facts of this case, the defendants are required to assume the burden of proving by negative proof that there had been no dissolution by divorce of said prior marriage. Defendants in fact assumed that burden, and did prove that in two places of residence established by deceased no divorce had been procured, and, further, by showing that the first wife had procured no divorce. The question, however, for us to determine, is whether or not this instruction properly places the burden of proof, and, if it does, it was a question for the jury to determine whether or not the burden had been successfully carried. The cases upon this point are by no means harmonious. We start with every presumption in favor of the validity of the marriage of plaintiff and deceased. Singular to say, a case from our own court, Klein v. Laudman, 29 Mo. 259, is the basis of practically all the law cited by plaintiff in support of this instruction, and in fact the basis of several potent decisions not cited by plaintiff. So that it devolves upon us to say whether that case properly declared the law, and whether or not other courts, citing and approving it, have properly analyzed and applied the doctrine announced therein.

"In the Klein Case, supra, Klein and his wife had sued Laudman and wife for slander. Defendants denied the speaking of the words, and in effect denied that Klein and Margaret Klein, the plaintiffs, were husband and wife. Mrs. Klein had stated that she had been previously married in Germany, and these admissions were proven. Based upon that proof, the trial court gave this instruction for defendants: `If the jury find from the evidence that the plaintiff, Margaret 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 cannot recover.'

"In discussing this instruction, Napton, J., who delivered the opinion, said: `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 declaration of one of the plaintiffs, was entirely consistent with the validity of the marriage de facto, which, beyond all dispute, existed between the parties here, and after they had produced their marriage certificate, with proof of cohabitation as husband and wife since its date, the presumption is that this marriage was a lawful one, and that the former marriage in Germany, if any such was established, had been dissolved. There was not any evidence in this case, so far as the bill of exceptions shows, that the first husband of Mrs. Klein was still living; but if this had been established, we think she was still entitled to the benefit of the favorable presumption that the first marriage had been dissolved by a divorce, and that it was not incumbent on her, in this character of action and under the pleadings in this case, to produce a record of the judicial or legislative proceedings by which the divorce was effected.'

"And on page 263, Judge Napton further said: `There was no proof that her first husband was living; and, if there had been, the woman was still entitled to the charitable presumption that a divorce from her first husband had enabled her to marry a second time. But the court directed the jury to presume the invalidity of the second marriage, unless proof positive of a dissolution of the first was produced.'

"In the case of Waddingham v. Waddingham, 21 Mo. App. 609, a case on the...