Shelton v. Belknap

• Decision Date: 29 June 1955
• Docket Number: No. A-5171,A-5171
• Citation: 155 Tex. 37,282 S.W.2d 682
• Court: Texas Supreme Court
• Parties: Coyzet SHELTON, Petitioner, v. D. R. BELKNAP et al., Respondents.

Page 682

282 S.W.2d 682

155 Tex. 37

Coyzet SHELTON, Petitioner, v. D. R. BELKNAP et al., Respondents.

No. A-5171.

Supreme Court of Texas.

June 29, 1955.

Rehearing Denied Oct. 5, 1955.

Further Rehearing Denied Nov. 2, 1955.

Eastman & Williams, Houston, Frank M. Rosson, San Antonio, for petitioner.

Morriss, Morriss, Boatwright & Lewis, Carl Wright Johnson and Edward P. Fahey, San Antonio, for respondents.

CALVERT, Justice.

Petitioner, alleging herself to be the surviving wife of M. A. Shelton, deceased, sued respondents for damages for his wrongful death under Article 4671, Vernon's Annotated Texas Civil Statutes. Respondents, by sworn pleadings, challenged petitioner's right to maintain the suit, contending that she and the deceased were never legally married. Admittedly there was no ceremonial marriage between the parties and issue was joined on the existence of a common law marriage. This issue was severed and tried in limine.

The jury found that (1) 'On or about October 1, 1947, M. A. Shelton and Coyzet Shelton mutually, unequivocally, and impliedly agreed and consented, the one with the other, to become, then and from that time thenceforth, husband and wife'; (2) that upon the faith of such agreement they had lived together and cohabited, professedly as husband and wife, and (3) that they had held each other out to the public as man and wife. The trial court rendered judgment non obstante veredicto for respondents and that judgment has been affirmed by the Court of Civil Appeals. 275 S.W.2d 174.

Following the familiar rule when judgment is rendered non obstante veredicto our statement of the evidence will comprehend only that which supports the jury's verdict.

There can be no question but that the jury's answers to Special Issues Nos 2 and 3 find strong suppport in the evidence. But living together and cohabitation of the parties as man and wife and their holding each other out to the public as such satisfies but two of the three essential elements of a common law marriage. This conduct must have been pursuant to an agreement to presently become man and wife. Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A.1915E, 1; Schwingle v. Keifer, 105 Tex. 609, 153 S.W. 1132; Cuneo v. De Cuneo, 24 Tex.Civ.App. 436, 59 S.W. 284.

The agreement necessary to the validity of a common law marriage need not be an express agreement; it may be implied. Consolidated Underwriters v. Kelly, Tex.Com.App., 15 S.W.2d 229. This was recognized by the trial court in the wording of Special Issue No. 1. Moreover, an implied agreement ordinarily may be inferred from the evidence which establishes the second and third essential elements of the marriage-the living and cohabiting together and the holding out to the public. consolidating Underwriters v. Kelly, supra; Manire v. Burt, Tex.Civ.App., 121 S.W.2d 630, 633, writ refused. But it is said that the inference of an implied agreement may not be drawn in this case because the direct testimony of the petitioner negatives such an agreement as a matter of law.

The record reflects that M. A. Shelton, formerly a resident of Louisiana, had secured a divorce from a former wife in 1946, and that Coyzet, the petitioner, secured a divorce from a former husband on August 18, 1947, and that the two began to sleep together about one week following Coyzet's divorce. Coyzet's testimony is that during this time she and Shelton were engaged and that she was expecting a ceremonial marriage. As a witness she undertook to relate a conversation with Shelton which occurred about October 1, 1947, and it is this testimony which is said to negative, conclusively, any implied agreement to presently become man and wife. The parties were discussing marriage and Coyzet asked Shelton when they were going to get married. Her testimony of what then was said is abbreviated as follows:

'* * * And he said, 'Ain't I your husband?' I said 'I don't know' and he said, 'Well, any man that lives with a woman six months, and she has her divorce and he has his, are common law man and wife.' And I said, 'I don't know.' And he said, 'I don't know what the law is in Louisiana, but that is the law in Texas,''

'* * * He said, 'From now on what I have is yours and what you have is mine.''

'And he said, 'You don't have anything to worry about because if anything happened to me before I makes out a will, you entitled to my part of the property of anything I have; and if you die before I do, I am entitled to what you have''.

'Well, and, too, while we was talking, he said, 'What difference do it make about getting married by a preacher or by a judge when you get just as much right just like you is as you is go get a piece of paper because that ain't doing anything but just paying the State.''

The theory of the Court of Civil Appeals in holding there was no valid common law marriage between the parties was that the relationship was illicit in origin and that the foregoing testimony negatived an agreement to presently become man and wife. The court said (275 S.W.2d 178): 'From the account given of the October conversation it appears M. A. Shelton believed that under the law of the State of Texas a man and woman, being free of legal impediments, would become man and wife by living together six months. It is likewise clear that the agreement was entered into with this mistaken belief or misapprehension in mind. * * * In any event, it seems certain that the parties did not, by the words employed by them, evince an intention to presently become husband and wife, nor can such intention be implied contrary to the express words used by them.'

We believe the related statements of M. A. Shelton are subject to an interpretation supporting the jury's verdict and differing from that given them by the Court of Civil Appeals.

It is to be noted that controlling and conclusive effect is given to the statement of M. A. Shelton that '* * * any man that lives with a woman six months, and she has her divorce and he has his, are common law man and wife. * * * I don't know what the law is in Louisiana, but that is the law in Texas.' But there were other contemporaneous statements, i. e.,: 'Ain't I your husband?'; 'From now on what I have is yours and what you have is mine'; 'If anything happened to me before I makes out a will, you entitled to my part of the property of anything I have; and if you die before I do, I am entitled to what you have'; 'You get just as much right just like you is as you is go get a piece of paper.' All of these statements indicate a present intent to then become and thereafter remain husband and wife. Strong evidence that such was the agreement of the parties is that immediately thereafter M. A. insisted on the purchase of a wedding ring for Coyzet and they took a honeymoon trip to Halletsville and Corpus Christi. The agreement that they would then and there become man and wife is not conclusively negatived by M. A.'s misunderstanding of the law. His statement in that respect is reasonably susceptible to the construction that whereas the parties intended to and would agree to presently become man and wife, he did not believe that they would be so recognized in law. The fact that he was mistaken as to how the law would be applied to the facts in interpreting the relationship should not be held to destroy the agreement for a present and continuing relationship of husband and wife.

There was no legal impediment to a marriage between the parties on October 1, 1947. The record discloses that both parties were competent to marry. Assuming that the other statements of M. A. Shelton, above quoted, and the subsequent acts and conduct of the parties would support an inference of an implied agreement to become man and wife, the legal effect of M. A.'s statement of the law may be illustrated by recasting his statement in this fashion: 'You and I will now take each other as husband and wife and thenceforth will live together as such. Of course, the law in Texas will not recognize our relationship as that of man and wife...