Schmeizl v. Schmeizl
Decision Date | 12 April 1945 |
Docket Number | 33. |
Parties | SCHMEIZL v. SCHMEIZL. |
Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City; Emory H. Niles, Judge.
Proceeding by Matilda I. Schmeizl, claiming to be the widow of Frederick Schmeizl, against the latter's administrator, Joseph Schmeizl. From rulings of the Superior Court adverse to plaintiff at the trial of an issue sent from the Orphans' Court, plaintiff appeals.
Rulings reversed, and cause remanded.
Harry Yaffe, of Baltimore (Anthony S. Federico, of Baltimore, on the brief), for appellant.
Charles D. Harris, of Baltimore (France, Rouzer & Lentz, of Baltimore, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.
This is an appeal from rulings at the trial of an issue sent from the Orphans' Court.
Frederick Schmeizl died in Baltimore on December 27, 1943, intestate without issue. Letters of administration were granted to his brother, Joseph Schmeizl (the appellee, defendant), on January 15, 1944. The issue tried was, Is Matilda I. Schmeizl (the appellant, plaintiff) the widow of the decedent? The jury answered, 'No.'
On August 8, 1911, Frederick Schmeizl (the decedent) and Matilda I. Duerbeck (the appellant), both of Baltimore, were married at Baltimore by the Reverend Theo. A. Mead. The license was issued on August 7th, the marriage certificate filed on August 9th. Neither had been married before. He was 21, she was 19. She and the administrator both testified that the decedent (so far as they know) never got a divorce. She testifies that she never got a divorce and at the time of his death was still married.
On cross-examination she testified that: In September, 1911, a daughter (who did not survive the decedent) was born. On August 8, 1930, she left her husband and went to California. About two weeks later she was joined there by Bert Phillips, a man she and her husband knew in Baltimore. Since 1930 she has lived in California continuously. She considers California her permanent address. She is known there as Mrs. Bert Phillips. Her ration books have been issued to her in that name. She has registered as a voter in California under the name Phillips, but not this time (1944). She lived in the same house with Phillips, first at Los Angeles, now at Santa Rosa, whre she has a little chicken ranch that he manages for her; he lives forty miles from her but he comes back and forth.
The administrator testified that: On August 8, 1930, the nineteenth wedding anniversary, 'they were going to have a little party'. That is when the wife left with Phillips. They got in a taxicab and left a note that they were going to give the decedent Court in January, 1944. Some time in March or the first part of April, before she left to go back to California, she went to his house and had a conversation with him. While they were talking, she opened her pocketbook, and he saw her ration book in the name Phillips. 'I said to her, Are you married to Phillips? She said, Why, yes. I said to her, Well, how about a divorce? She says then, Well, I got to be married by a preacher out there without getting a license. A marriage license. And also it wouldn't be put upon the court record. Then she said, I am married to him. * * * She told me that she was married by a preacher in California, * * *. That is just the way that I remember it. I didn't ask her the second time for she said that they did not get any license for the law did not require that they be married by a preacher out there and they didn't have any court record of it. * * *
* * *
On cross-examination he testified:
In the administrator's testimony his statement, 'she says that she was divorced,' is in effect contrary to his previous testimony and is flatly contradicted on his cross-examination. This statement has no probative force or evidential value. United States Fidelity & Guaranty Co. v. Continental Baking Company, 172 Md. 24, 33, 190 A. 768; Slacum v. Jolly, 153 Md. 343, 351, 138 A. 244.
The administrator offered in evidence section 79 of the California Civil Code: (Added by Code Amendments, 1877-78, p. 75.)
The plaintiff (the wife) offered a prayer for a directed verdict, an answer 'Yes', on the ground that there is no evidence legally sufficient to prove that she was not the decedent's widow. She excepted to the refusal of this prayer and, on the same ground, to the charge to the jury. She filed a 'motion for judgment n.o.v.', viz., a motion that the 'court enter a verdict for the plaintiff * * * notwithstanding the verdict of the jury'. The motion was overruled.
The appellee (the administrator) contends that: there is evidence legally sufficient to show that during the decedent's life his wife and Phillips were married by a clergyman in California; by reason of the presumption of marriage and the presumption of innocence the California marriage must be presumed to be valid; consequently, the wife must be 'presumed' to have got a divorce from the decedent; by these presumptions and inferences the presumption of continuance of the decedent's marriage is overcome.
Aside from the doctrine (which Wigmore says is fallacious) that the law will not permit an 'inference upon an inference' (Krell v. Maryland Drydock Co., Md., 41 A.2d 502, 508, decided March 2, 1945), the question in a particular case is whether the evidence is legally sufficient to support one or more particular inferences.
Concerning the presumption of marriage and legitimacy, the statement most quoted in later American cases, and also a concise statement of the doctrine of some leading British cases, are contained in the opinion of the New York Court of Appeals in Hynes v. McDermott, 1883, 91 N.Y. 451, 459, 43 Am.Rep. 677:
'The presumption of marriage, from cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence. In Morris v. Davies (5 Cl. & Fin. 163) Lord Lyndhurst, speaking of this presumption, says: ...
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