Marre v. Marre
| Decision Date | 20 June 1914 |
| Citation | 168 S.W. 636,184 Mo.App. 198 |
| Parties | LOUIS MARRE, Respondent, v. AGNES E. NASH MARRE, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs, May 6, 1914,
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
REVERSED.
Judgment reversed.
George B. Webster for appellant.
(1) On his own testimony the plaintiff was not entitled to a decree. (a) He testified that he knew before the marriage that the defendant was a negress, and hence he knowingly committed a criminal offense. The purpose of his bill is to obtain relief from his own illegal act. Equity will not relieve a wrongdoer from the consequence of his own wrong, but will leave such an one just where it finds him. 16 Cyc., p. 145; 2 Pomeroy, Eq Jur. (3 Ed.), sec. 940; Sample v. Barnes, 14 How 74; Tyler v. Larimore, 19 Mo.App. 445; Ward v Hartley, 178 Mo. 140; Ryan v. Miller, 236, Mo. 496. (b) Giving to the plaintiff evidence absolute verity, it was still insufficient, since there was no evidence whatsoever from which it might be determined what degree, if any, of African blood the defendant had. State v. Melton, 44 N.C. 49; Linton v. State, 88 Ala. 219; McPherson v. Com., 28 Gratt, 929; Gentry v. McMinnis, 3 Dana, 382, 385; People v. Hall, 4 Cal. 399; R. S. Mo., 1909, sec. 4727. (c) The evidence was insufficient to establish the allegation that the defendant is of negro blood. (d) There was no proof of that duress which is legally sufficient to avoid a contract, or of such intimidation, restraint or detention as precludes free and voluntary action. 2 Greenleaf, Ev., sec. 301; Wilkerson v. Hood, 65 Mo.App. 491; Meredith v. Meredith, 79 Mo.App. 636; Rolson v. DeHart, 134 Mo.App. 633; Dausch v. Crain, 199 Mo. 323; Wood v. K. C. Home T. Co., 223 Mo. 537; Fellows v. School Dist., 39 Me. 559; Edwards v. Bowden, 107 N.C. 58; Schoelhamer v. Rometsch, 26 Ore. 394; Williams v. Stewart, 115 Ga. 864; Young v. Simon, 41 Ill.App. 28; Lamson v. Boydon, 57 Ill.App. 232; Morse v. Woodward, 155 Mass. 233; Thorne v. Thorne, 57 Wash. 441. A man who permits himself to be frightened by empty words cannot set up his cowardice as a sufficient excuse to relieve him from the performance of his contract. Bosley v. Shannon, 26 Ark. 280; Wells v. Sluder, 70 N.C. 55. The uncontroverted testimony of the defendant that at the time of the alleged forced marriage she was with child by the plaintiff raised the presumption that the marriage resulted from an impulse on his part to do the honorable thing by the defendant, and this made heavier the burden of proof which he was required to sustain. Meredith v. Meredith, 79 Mo.App. 636; Hounett v. Hounett, 39 Ark. 156. (2) A lawful marriage in Illinois was proved by the defendant before the occurrence of the alleged duress. Hutchinson v. Hutchinson, 196 Ill. 432; Alden v. Church, 106 Ill.App. 347; Hooper v. McCaffery, 83 Ill.App. 341. Being lawful there, and not being one of an abhorent nature, it must be recognized as valid here, since our statute does not denounce marriages performed in other jurisdictions. 1 Bishop, Mar. Div. & Sep., secs. 867-869; Pingree, Extraord. Contr., sec. 400; Medway v. Needham, 16 Mass. 157; VonStroch v. Griffin, 71 Pa. 240; Van Voorhis v. Brinthal, 86 N.Y. 18; Stevenson v. Gray, 17 B. Mon. 211-214; State v. Shattuck, 69 Vt. 403; Ross v. Ross, 129 Mass. 243; Phillips v. Madrid, 83 Me. 205; Ponsford v. Johnson, 2 Blatchf. 51; Com. v. Lane, 113 Mass. 458.
Hiram N. Moore for respondent.
Plaintiff below, respondent here, instituted his action on March 15, 1911, in the circuit court of the city of St. Louis, praying the annulment of a marriage contracted with defendant, as plaintiff alleged, on November 2, 1908. The grounds upon which he based his right to relief were, first, that the marriage was the result of duress, and, second, that defendant is a negro, while he is a white person.
Defendant answered by a general denial and the plea of a marriage in Illinois on July 3, 1908. This latter averment was met by a general denial in the reply.
The trial before the court resulted in a decree for plaintiff, from which defendant, after timely but unsuccessful motions for rehearing, appealed to this court.
In rendering the decree the learned trial court found that there was no contract of marriage entered into between plaintiff and defendant in the State of Illinois, and that the contract of marriage entered into between plaintiff and defendant in the city of St. Louis, on November 2, 1908, was without the consent and against the will and wishes of plaintiff, and was the result of duress upon plaintiff, and further found that at the time of the contract of marriage entered into between plaintiff and defendant in the city of St. Louis, plaintiff was a white person and defendant was a negress.
The evidence as to the alleged marriage in the State of Illinois rests alone upon the testimony of defendant. This Illinois marriage was pleaded as an affirmative defense by defendant, hence the burden was upon her to prove it, plaintiff denying it in the most positive manner and there being no fact or circumstance tending to prove that it had occurred beyond the fact of cohabitation between the parties after that in this State. We may add that there is no corroborative evidence of defendant even as to the alleged fact of cohabitation as man and wife in this State after the alleged marriage in Illinois. On this issue the finding of the trial court is right.
On the issue of duress, on a very careful reading and consideration of the testimony in the case, we find ourselves unable to agree with the conclusion arrived at by the learned trial court that duress has been proven.
The duress relied upon are threats by a brother of this defendant and by her mother. It appears that defendant had a brother who was mentally unsound and, according to the testimony introduced on behalf of plaintiff, this brother had threatened, on several occasions, that if plaintiff did not marry his sister he would kill him, at the time flourishing a shotgun which defendant says was not loaded, and that these threats were communicated to plaintiff on the Saturday preceding the date of the marriage between the parties in St. Louis. It appears, according to the testimony of plaintiff, that the mother of defendant, an old lady some sixty-six years of age, on Sunday, November 1, 1908, accosted him on the street and demanded that he come to their house. He at first refused to go. The old lady told him he had better come; that she was not going to hurt him; would swear she would not hurt him or let anybody hurt him. So he went with her to her home. When he got there he was taken into a room where defendant was lying in bed seriously sick; that the mother locked the door and told him that if he did not get a priest and marry her daughter, she would kill him or have her son kill him. These are the threats of the mother, made November 1, the day before the marriage. It appears that the son referred to was in the house at the time, but, according to the testimony of defendant, in charge of an attendant, not in the room with plaintiff and defendant and the latter's mother, and that he had no knowledge of plaintiff's presence at the time; nor does it clearly appear that plaintiff himself knew that this son and brother was in the house at the time. At any rate, the son did not come near the room or into the presence of plaintiff; made no threats of any kind to him personally at that time and, as far as the evidence is concerned, had never made any threats to him personally at any time. As to this imbecile brother, it may be further said that he had been known to carry a shotgun and to fire it off on different occasions, had been several times confined to an asylum and was known in the neighborhood as a quarrelsome, violent man in his talk when he was permitted to come home, but there is no evidence whatever in the case that he had ever harmed anybody, or even made any attack on anyone.
These are the threats relied on as constituting duress and as the basis of the claim that the act of consent to the marriage was procured by duress per minas.
It may be said that the mother, in the most positive manner, denied making any threats or locking the door of the room, so that this stands on the uncorroborated testimony of plaintiff himself. It may be further noted that the mother, in confirmation of her denial of locking the room door, testified that the house in which this occurred had but one key and that was to the front door, and that she not only did not lock the door of the room in which the parties were but that they had no lock or key to that door.
We are unable to find any cases in which it is held that acts of this kind constitute duress of such a character as to enable a party to escape from a contract into which he has entered, and the marriage relation, in law, rests on contract. Mere apprehension of physical, or possible physical injury, is not sufficient. It must be fear of that degree of violence, threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.
Duress is defined to be, "A condition which exists where one by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will; a condition of mind produced by the improper external pressure or influence that practically destroys the free agency of a party, and causes him to do an act or make a contract not of his own volition; personal restraint or fear of personal injury or imprisonment; . . . intimidation, or compulsion of...
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