Plattner v. Plattner

• Decision Date: 14 November 1905
• Citation: 116 Mo. App. 405,91 S.W. 457
• Parties: PLATTNER v. PLATTNER.
• Court: Missouri Court of Appeals

91 S.W. 457

116 Mo. App. 405

PLATTNER v. PLATTNER.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

Rehearing Denied December 12, 1905.

1. MARRIAGE — COMMON-LAW MARRIAGE — EVIDENCE — SUFFICIENCY.

In divorce, evidence considered, and held sufficient to show a common-law marriage between the parties.

2. SAME — PROOF BY CONDUCT.

A common-law marriage may be proven by facts and circumstances and conduct of the parties.

3. SAME — PRESUMPTION OF MARRIAGE.

The law presumes a marriage from evidence of acknowledgment, cohabitation, and reputation.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Anna Plattner against Anton Plattner. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Paxson & Clarke, for appellant. M. Hartman, for respondent.

BLAND, P. J.

The petition alleges that plaintiff was lawfully married to defendant on April 15, 1890; that she continued to live with defendant as his wife until March 25, 1903; that two children were born of the marriage, both of whom have been taken from plaintiff by the defendant. The petition also alleges many incidents of barbarous and inhuman treatment of plaintiff by the defendant, beginning shortly after the marriage and continuing, at intervals, to March 25, 1903, on which date, it is alleged, the plaintiff was compelled by ill treatment to leave the defendant; that they have lived separate and apart from said date. The petition further alleges the abandonment by defendant of plaintiff without just cause, his failure to contribute to her support, and prays for an order compelling him to support her. The answer was a general denial. After hearing the evidence, the court found the issues for the plaintiff and "adjudged and decreed that the defendant do pay to plaintiff the sum of 25 dollars per month, due and payable on the first Monday of each month after the date of the decree." Appropriate provisions were made in the judgment for its enforcement. Defendant appealed.

Plaintiff's evidence showed the cruel and barbarous treatment alleged in her petition and that the defendant deserted her without cause, and the decree of the circuit court should not be disturbed if there is substantial evidence of the marriage. There was no marriage license taken out by the parties nor was there a celebration of their marriage. Plaintiff relies upon a common-law marriage. Defendant contends that the evidence is insufficient to prove a marriage as at common law. The evidence shows plaintiff was a widdow and had three minor children by her first husband. Defendant was a widower without child or children, and kept a butcher shop in the city of St. Louis, near plaintiff's greengrocery store. They became acquainted and the defendant, to accommodate plaintiff, when he would go to market with his wagon, would bring supplies to plaintiff's store, and after business hours would occasionally call at her house to visit her. This continued for a few months and until, as plaintiff testified, they agreed to get married, and set the day for its consummation. Plaintiff testified that, on the evening of April 24th, defendant called at her house and told her to be ready the following morning and he would call and they would go to the recorder's office and get the marriage license; that she did so and the defendant called and she got into his wagon and they drove down to the market; that after they were at the market a short time defendant told her he had "no time now to get the license," and for her to "get on the street car and go home," and she did so; that on the evening of the same day defendant came to her house and proposed to sleep with her; that she wanted to know about the license, and he answered that it would "be all right"; that he was "a man, not a boy," and from that time on they lived together as man and wife. The following appears in plaintiff's cross-examination: "Q. You knew you were not married? A. He said it was all right. Q. You had been married once before, and you knew what it took to be married? A. Yes, sir. Q. You knew you could not be married without a certificate? A. He said he would put me down—Q. (interrupting) You knew you were not married? A. Yes, sir. Q. And you let him come there and stay all night with you? Is that right? A. I told him he should go home to his house. I have to lock my store. I couldn't keep my store open. Q. You let him sleep there with you all night after he told you he didn't want to get married? A. He didn't say that. He said it was all right. I told him about the license. Q. Did you know a license was necessary? Answer my question `Yes' or `No.' A. I think a man is a man. Q. Did you know a license was necessary? Mr. Hartman: I object to that as having been answered before. The Court: Objection overruled. Q. Answer `Yes' or `No.' Did you know a license was necessary—yes or no? A. I knew a license. He promised me one. Q. You knew a license was necessary before there could be a legal marriage? A. I was married to my first husband. Q. You knew that a license was necessary? A. Yes, sir. Q. It is a long while getting it out of you. And you knew he had no license and yet you let him stay all night? A. He always promised me. The Court: Promised you what? A. To get married. Q. When did he promise you? A. He said he was a man and would stick to his word. He said he was no boy. Q. Did he promise you that the first night he slept with you? A. Yes, sir; he said a man was a man. Q. And you would get married? A. Yes, sir. And you let him sleep with you notwithstanding you were not married? Did you ever ask him afterwards to get married? A. Yes, sir. Q. And he always refused? A. No, sir. Q. He consented, and you got married? A. He said a woman should have nothing to say. A woman don't need any decent clothes and when he would be tired he would sell the property and go to Germany. In January, 1890, he told me to go and get married and we would have a good time. Q. And he always refused to marry you,...