McNee v. McNee
| Decision Date | 06 July 1925 |
| Docket Number | 2689. |
| Citation | 237 P. 534,49 Nev. 90 |
| Parties | McNEE v. McNEE. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Frederick A. McNee against Sadie G. McNee to obtain annulment of marriage. From a judgment annulling marriage and order denying new trial, defendant appeals. Affirmed.
Cooke French & Stoddard, of Reno, for appellant.
Hoyt Norcross, Thatcher & Woodburn, of Reno, for respondent.
This is an appeal from an action instituted to obtain an annulment of marriage. The complaint states two causes of action. In the first it is alleged: That the plaintiff and defendant, on or about the 21st day of April, 1921, at the town of Ingersoll province of Ontario, Dominion of Canada, entered into a form of marriage, and were by reason of said form declared to be husband and wife; that at the time of entering into said form of marriage the plaintiff, by reason of want of understanding, occasioned by intoxication, was incapable of assenting thereto. In the second cause of action it is alleged: That at the time of entering into said form of marriage and immediately prior thereto, the defendant, taking advantage of the plaintiff's condition and want of understanding, did then and there fraudulently persuade plaintiff to enter into said form of marriage for the purpose of obtaining from plaintiff or his family a pecuniary advantage. It is alleged that there has been no subsequent cohabitation of plaintiff and defendant since entering into said form of marriage.
The allegations set forth in the complaint as grounds for annulment, with the exception of the fact of no cohabitation, are denied in the answer specifically and by the statement of facts, which, in effect constitute denials.
The action was tried before the court without a jury. Plaintiff prevailed, and a judgment was rendered on the 20th day of September, 1924, annulling the marriage, and declaring it to be wholly void from the date of judgment. Defendant has appealed from the judgment and the order denying the motion for a new trial.
The section of our statute which authorizes an action of this kind reads:
"When either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when fraud shall have been proved, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be void from the time its nullity shall be declared by a court of competent authority." Section 2355, Rev. Laws, vol. 1.
No evidence was introduced in support of the cause of action based on fraudulent persuasion, the plaintiff confining his proof to his alleged state of intoxication at the time of the marriage. Upon this phase of the case the court found as follows:
"That at the time of entering into said form of marriage plaintiff, by reason of want of understanding occasioned by intoxication, was incapable of assenting thereto."
The court further found:
"That since the entering into said form of marriage there has been no subsequent cohabitation of plaintiff and defendant."
Upon the latter finding there is no conflict of evidence whatever. It was conclusively proven that there was no cohabitation after the marriage. But as to the former finding the evidence is conflicting. Counsel for appellant contend that there is no substantial evidence to support the finding of the court. This is the only question presented for determination. We need not undertake to define the degree of intoxication of a party to a marriage which will authorize a judgment annulling it. The test appears in the statute, which declares:
"When either of the parties to a marriage, for want of * * * understanding, shall be incapable of assenting thereto. * * *"
We assume that the trial judge applied this test to the evidence before him in reaching the conclusion that the marriage was void by reason of the degree of plaintiff's intoxication at the time the ceremony was performed.
We have carefully considered all of the evidence bearing upon the issue presented, and are of the opinion that there is substantial evidence to justify the court in making the finding and rendering the judgment annulling the marriage. There is evidence which would have justified a contrary conclusion, but it was within the province of the lower court to finally determine all questions of conflicting evidence. Our duty goes no further than to ascertain if there is evidence upon which the lower court could have reasonably formed the conclusion that the plaintiff, for want of understanding due to intoxication, was incapable of assenting to the marriage contract. As stated in Dunphy v. Dunphy, 161 Cal. 380, 119 P. 512, 38 L. R. A. (N. S.) 818, Ann. Cas. 1913B, 1230:
Our own decisions are in accord with that statement.
We deem it unnecessary to state more than a brief summary of the evidence, which we regard as sufficient basis for the judgment of annulment. To state the testimony of defendant would prolong this opinion and serve no useful purpose, for it is conceded that it supports her defense that plaintiff was not intoxicated at the time of the marriage. It is not, however, as we have already indicated, of such strength to weaken plaintiff's evidence to the extent that the trial court was not entitled to reasonably consider it worthy of belief, and to base its judgment upon it.
The parties resided in London, Ontario, and had been keeping company for several months prior to their marriage. On the night before their marriage they were together at the London Hunt Club near London until about 1:30 a. m. April 22, 1921, when they returned to London, and thence to the town of Ingersoll, where they were married at about noon of that day. Ingersoll is about 18 miles from London. They went in an automobile from London to Ingersoll and back to London after the marriage, the plaintiff driving the car going and returning. On the same day, after a conference with his brothers and an attorney, plaintiff left London for New York in company with one of his brothers. The plaintiff and defendant did not meet again until in the courtroom at Reno at the time of the trial. Plaintiff had been employed by his brothers as a bookkeeper for some time prior to the marriage. Plaintiff's version of his recollection of the marriage, and the incidents prior thereto, is substantially as follows: From the time he first met defendant until the day of his marriage, he was drinking every night, except on three occasions. Practically every night he became completely intoxicated in her company. On the evening of the 21st of April they went to the London Hunt Club in an auto and sat in the driveway of the club and drank a bottle of Scotch whisky. They both became intoxicated, and plaintiff remembered little more until after his marriage. He had a very dim recollection of going through a marriage ceremony. He had no intention of getting married, and had never asked defendant to marry him. On cross-examination he testified that he had no recollection of incidents on the night before the marriage after about half past 10 o'clock; that he had no recollection of how he happened to go to Ingersoll, or who suggested it; and had no recollection of how he found the minister's house or when he left there. He could not remember getting the marriage license.
According to the deposition of the steward of the London Hunt and Country Club, he saw the plaintiff and defendant at the club on the night of the 21st of April, 1921, and drove them to London. The steward testified:
In reply to cross-interrogatories, the steward said:
In addition to the deposition of the steward, plaintiff introduced in evidence the depositions of his three brothers, James A. McNee, Ernest D. McNee, and Elmer W. McNee, the deposition of John Wesley Cunningham, an accountant for the McNee brothers, and the deposition of Newenham Parke Graydon, a solicitor. Each of the witnesses saw the plaintiff on the day of the marriage shortly thereafter. In part, James McNee testified:
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