Williams v. Williams
| Decision Date | 23 June 1914 |
| Parties | BERTHA WILLIAMS, Appellant, v. ELLA A. WILLIAMS and JOHN T. WILLIAMS |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.
Affirmed.
O. F Karbe and S. C. Rogers for appellant.
(1) The court erred in finding against plaintiff and for the defendants under the law and the evidence. Davis v Stouffer, 132 Mo.App. 555; Cargile v. Wood, 63 Mo. 501; Dyer v. Brannock, 66 Mo. 361; Waddingham v. Waddingham, 21 Mo.App. 609; Busch v. Busch, 81 Mo.App. 562; R. S. 1909, secs. 345, 351, 355, 358. (2) The court erred in requiring plaintiff to prove, in order to make a case, an actual, open declaration of contract of marriage. Cargile v. Wood, 63 Mo. 501; Dyer v. Brannock, 66 Mo. 361; Blair v. Pattison, 131 Mo.App. 122; Waddingham v. Waddingham, 21 Mo.App. 609; Busch v. Busch, 81 Mo.App. 562; Imboden v. Trust Co., 111 Mo.App. 220; Plattner v. Plattner, 116 Mo.App. 405; Davis v. Stouffer, 132 Mo.App. 555. (3) The court erred in overruling plaintiff's motion for a new trial. Nelson v. Jones, 245 Mo. 579. (4) The court erred in excluding proper, legal, competent, relevant and material evidence offered by the plaintiff. Cargile v. Wood, 63 Mo. 501; Imboden v. Trust Co., 111 Mo.App. 220; Coy v. Humphreys, 142 Mo.App. 92; Sec. 6362, R. S. 1909; Holloway v. Kansas City, 184 Mo. 19; Davenport v. Hannibal, 108 Mo. 471. (5) The court erred in permitting defendant, John Williams, to testify as to declarations by deceased, Walter John Williams, without the presence of plaintiff or other person. Collard v. Busch, 138 Mo.App. 94; Bishop v. Brittain Inv. Co., 222 Mo. 699; Imboden v. Trust Co., 111 Mo.App. 220. (6) The court erred in finding against plaintiff and for defendants because defendants by their objections to certain documentary evidence admitted the commonlaw marriage. (7) Because the court erred in admitting, over the objection and exception of plaintiff, improper, irrelevant, illegal, incompetent and immaterial evidence offered by the defendants.
James Booth for respondents.
(1) The trial court saw the witnesses, observed their demeanor while upon the stand and his opportunity for judgment on the weight of the credible evidence in the case was better than that of an appellate tribunal that has only the cold record before it with no opportunity to watch the demeanor of the witnesses. Speaking to a similar fact in a similar case where it was charged that the appellate court ought to review the evidence and reverse the finding of the trial court this court thus declared the rule: "In determining whether he erred in so finding it must be borne in mind that he had the witnesses before him and could observe their manner of testifying and had exceptional opportunities to weigh their evidence." Topper v. Perry, 197 Mo. 549. (2) Where, as in this case, the judgment of the trial court is right upon the whole record, the various rulings of the trial court, even though error (which is controverted), are immaterial and its judgment ought to be affirmed. Bank v. Tuttle, 144 Mo.App. 249; Gibbs v. Haughowout, 207 Mo. 384. (3) The rule is well established in this State that the statements and declarations of Walter Williams as to his relations with plaintiff were admissible as evidence in this case. Property rights have been vested and divested on the strength of these decisions and it is too late now to question the correctness of the rule. Topper v. Perry, 197 Mo. 531; Imboden v. Trust Co., 111 Mo.App. 235. (4) Cohabitation and reputation are at best only presumptive proofs; the trial court could have found these facts and still found as a matter of fact there was no marriage. Topper v. Perry, 197 Mo. 531. Plaintiff's case rested entirely upon the inference to be drawn from evidence of cohabitation. The doctrine of presumption had no abiding place in this case. Presumptions of fact become inoperative when the actual facts are disclosed. Schaub v. Railroad, 133 Mo.App. 444; Stone v. Perkins, 217 Mo. 586. (5) The admission of improper evidence is not properly before this court and this court should disregard such assignment of error. True it is charged in appellants brief, "that the court erred in excluding proper, legal, competent, relevant and material evidence offered by the plaintiff." Nowhere does the brief "distinctly and separately allege the errors committed by the trial court" as required by rule 15 of this court. At best the purported assignment of error as to the admission of evidence is an invitation to the court to go through some two hundred pages of the record and perform a duty that the rule required counsel to perform for himself. (6) In this case while there may have been some evidence of cohabitation there was no general reputation concerning the matter. The evidence was insufficient to make a prima-facie case. Topper v. Perry, 197 Mo. 531. (7) There was no evidence of a marriage by words of the present. This was required and having failed to furnish such proof the finding was properly against the plaintiff. Topper v. Perry, 197 Mo. 531.
This is a suit in equity by which plaintiff seeks to establish her dower interest in certain land, at one time owned by her alleged commonlaw husband, Walter J. Williams, now deceased and to set aside, on the ground of fraud, a certain conveyance of said land made by her said husband to one of the defendants herein. The answer contained a general denial and also denied that plaintiff was, at any time, the wife of said Walter J. Williams and further alleged that in the year 1904 said Walter Williams was the owner of the real estate described in the petition and on that date he voluntarily conveyed the same in fee to the defendant Ella A. Williams. The reply was a general denial. The evidence on the part of the plaintiff tended to show that in 1903 plaintiff and Walter J. Williams began living together in the city of St. Louis, each being about thirty-three years of age. Up to this time neither of the parties had ever been married, but plaintiff had a daughter then eight years of age, who lived with them. It is not claimed that Walter Williams was the father of this child, but it is claimed that its father's name was Bauman. Williams was a surveyor doing surveying work mostly for railroads, and his occupation kept him out of the city a greater portion of the time, but generally he would be at home from one to two days each week. During this time plaintiff introduced Williams to some of her neighbors as her husband and, on some occasions, he referred to her as his wife. Plaintiff's little daughter called Williams father, papa and daddy. Plaintiff and Williams slept in the same room while he was at home. There seems to have been some question in the minds of some of plaintiff's relatives and neighbors as to the relationship existing between plaintiff and said Williams. Three of plaintiff's witnesses testified that they heard Williams say on different occasions, "In the eyes of God, we are man and wife," or they were "as good as married, in the eyes of God" and that they were "already married in the eyes of God." They continued this relationship until sometime in August, 1905, when Williams' work called him to Haynesville, Louisiana, and plaintiff and her daughter followed him there, where they lived for a short time at a hotel and when talking to some of the people they met there, referred to each other as husband and wife. After they had gone to Louisiana, plaintiff's brother-in-law wrote Williams a letter concerning his relationship with the plaintiff and Williams replied telling the brother-in-law not to worry that he would take care of his wife and little girl and that they would be legally married on the way back. They returned to St. Louis from Louisiana in 1905 and continued their relationship in St. Louis somewhat similar to what it was before going to Louisiana. Some people called plaintiff Mrs. Williams and others called her Mrs. Bauman. At one time in 1905, said Williams with plaintiff and her daughter rode one trip on the Iron Mountain Railroad upon a pass issued to "W. J. Williams, Wife and Child." Plaintiff's maiden name was Bertha Fisher. Several letters written at different times from Walter Williams to the plaintiff were offered in evidence. In these letters he addressed the plaintiff as "Dear Birdie," and generally referred to her in the body of the letter as "sweetheart." In one letter written from Louisville, Georgia, February 20, 1908, he says: In a letter from Ft. Smith, Arkansas, dated January 27, 1904, he writes: "I am getting anxious to have the job get over now as I want to see my wife and baby." The plaintiff's evidence further tended to show that during the time of the existence of this relationship plaintiff was working in the capacity of a professional nurse, doing professional nursing, whenever she had work of that kind to do. The evidence also shows that at different times Walter Williams when away from St. Louis would send plaintiff money. Williams became the owner of the lot here in controversy in 1894 and in 1904 deeded the same to his mother, one of the defendants herein. This deed, however, was not acknowledged until September 1, 1909, and was not recorded until September 2, 1909. Williams died September 8, 1909, at a hospital in the city of St. Louis. The evidence on the part of defendant was to the following effect: Defendant John T. Williams testified that he was the father of Walter J. Williams, deceased; that he first met plaintiff, December 18, 1905, at the Union Station in St. Louis; that just before...
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