Wingfield v. Pool

• Decision Date: 19 March 1931
• Docket Number: No. 9538.,9538.
• Citation: 38 S.W.2d 422
• Parties: WINGFIELD v. POOL et al.
• Court: Texas Court of Appeals

38 S.W.2d 422

WINGFIELD v. POOL et al.

No. 9538.

Court of Civil Appeals of Texas. Galveston.

March 19, 1931.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action by Ester Wingfield against Lizzie Pool and others. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Winfree & Weslow, F. F. Beadle, Dick Young, and W. A. Shields, all of Houston, for appellant.

P. Harvey and S. O. Lovejoy, both of Houston, for appellees.

GRAVES, J.

This appeal regularly proceeds from a judgment of the Sixty-First district court of Harris county, rendered pursuant to the return of a verdict it had instructed for the appellees, whereby appellant's claim to having been the common-law wife of Charles Wingfield at the time of his death—hence entitled to share as such in the estate he left—was denied, and appellees were found to be the share-and-share-alike owners of such property, by virtue of being his sole surviving heirs at law; he having died intestate in Harris county, Tex., unmarried, and without issue.

Inveighing here against that action below, appellant urges error on the part of the trial court in three main particulars: First, in peremptorily instructing a verdict against her on the issue of whether or not she was the common-law wife of Charles Wingfield when he died; second, in excluding from the evidence a certain divorce decree from the court of chancery in Jasper county, Miss., offered by her to show divorce between herself and her former husband, Robert Jones, and capacity on her part to consummate a common-law marriage with Charles Wingfield; third, in refusing to hear proof tendered relative to the claimed validity of that divorce decree.

If the evidence offered in her behalf upon that question—disregarding all that was adverse and all conflicts, however, strong, and indulging in its favor every legitimate conclusion reasonably inferable therefrom— raised an issue of fact over whether appellant was the common-law wife of Charles Wingfield at the time of his death, the withdrawal of the cause from the jury was error. Wininger v. Railway Co., 105 Tex. 56, 143 S. W. 1150; Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Brown v. Griffin, 71 Tex. 654, 9 S. W. 546; Texas & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S. W. 4; International & G. N. Ry. Co. v. Tinon (Tex. Civ. App.) 117 S. W. 936.

After a careful examination of the statement of facts in the light of that rule of law, we think it plain that the issue was raised, if, indeed, the fact of her being such common-law wife did not conclusively appear.

The learned trial court, in holding otherwise, seems from the recitations in the decree to have labored under the same view the appellees present in their brief, to wit, that it was necessary by direct evidence to show "an agreement between the parties to become, then and there, husband and wife, followed by co-habitation and holding out to the public as such," whereas the true rule is: "Independent of any direct or documentary evidence, a marriage may be circumstantially established by the fact that a man and woman have for a considerable period of time openly cohabited as husband and wife and recognized and treated each other as such so that they are generally reputed to be married among those who have come in contact with them. Such circumstances justify a finding that at the commencement of the cohabitation the parties actually entered into a marriage, but, although they justify such a finding, they do not necessarily lead to or demand it." 38 Corpus Juris, 1338. See also Edelstein v. Brown (Tex. Civ. App.) 95 S. W. 1126, affirmed in 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816; Clover v. Clover (Tex. Civ. App.) 247 S. W. 300; Winters v. Duncan (Tex. Civ. App.) 220 S. W. 219; Walton v. Walton (Tex. Com. App.) 228 S. W. 921; Brooks v. Hancock (Tex. Civ. App.) 256 S. W. 296.

In this instance appellant herself being unable, on account of the interdiction of R. S. article 3716—this being an action against Charles Wingfield's administrator—to testify as to whether or not she had made such an agreement with the deceased during his life-time, many witnesses testified in her behalf that she and he had lived together in the same house for something like two years before he died; that he had established for her as his wife a line of credit at the grocery store; that he had introduced her to numerous people as his wife; that they attended moving picture shows together in company with married friends of theirs; and that she was generally known in the community as Mrs. Wingfield.

To this she herself added, without objection, that at the time she thus lived with Wingfield she had been divorced from her prior husband.

This evidence alone, to make no attempt to even recapitulate its extended details, especially when given the benefit of all reasonable inferences and intendments, was clearly sufficient to take to the jury the question of whether or not the declared-upon common-law marriage, inclusive of the necessary agreement between the parties to enter into it, existed. Walton v. Walton (Tex. Com. App.) 228 S. W. 921; Burnett v. Burnett (Tex. Civ. App.) 83 S. W. 238; Texas Employers' Insurance Ass'n v. Soto (Tex. Civ. App.) 294 S. W. 639.

Appellant's other two contentions also should be sustained, we conclude; that is, in the circumstances, the copy she offered of the...