229 Mo. 699 | Mo. | 1910
— Plaintiff, claiming to be the widow of Doctor Galen E. Bishop and that she was deforced of her dower in certain real estate, situate in St. Joseph, of which he was seized of an estate of inheritance during marriage, sued to admeasure dower. The answer raised the general issue.
Presently the trial came on before a jury in Judge Mosman’s division of the Buchanan Circuit Court; the verdict was against her on the issue of marriage. Prom a judgment following, she comes up.
Bishop died in July, 1902. Plaintiff claims a common law marriage to him on January 1, 1894. Some months later, to-wit, on July 31, 1894, he executed a deed of trust to secure to one Wheeler, as curator, a loan then made on the property in question. There are record signs the value of the property is considerable, say, $50,000. He executed the deed of trust as a single man. On foreclosure, his title passed to defendant company. At the time of suit, the company was in possession. We get the idea that Bishop, at one time a rich man, was finally crippled financially. At the time in hand, he was well past middle age. He had .long been a physician in St. Joseph, and, as an aid to fortune, made and vended a mixture called “Granger” as a medicine. He was married many years before, but his wife died in December, 1892. Plaintiff’s name was Kate'T. Cochran. Her father’s first name was Chandler, it is suggested by counsel. At the time of (and for a year before) the alleged marriage she was “housekeeper” for Bishop under the name of “Mrs. Chandler.” She assumed this name at the outset, on becoming his housekeeper, intending thereby to pass as a married woman or widow. Bishop had been an “old beau” of hers, and the name “Chandler” was assumed at his suggestion. Her explanation runs as follows: “Well, the doctor said that I would be annoyed with gossip; the doctor was an old beau of mine and he said, ‘Now if you take charge of the family’ ... he sent word for me to come up and see him; he says, ■‘Now if you go there by the name of Miss Kate Cochran, as you always go, they will commence telling all
Bishop had two children by his first marriage— a boy and a girl. At the time of the death of their mother the girl, Anna, was thirteen, the boy the younger of the two. The doctor kept house. Two or three months after his wife’s death he wrote plaintiff to come as his housekeeper, because the one he had was stealing. She came and was installed in that capacity.
On taking the stand in her own behalf, her competency was challenged. The court overruled the objection and counsel saved the point.
Her testimony is to the effect following: It had been arranged that her niece, Mrs. Spratt, should' witness the marriage; but the doctor had “patients at the office,” expressed himself as “sorry” for the
At the trial of another case between plaintiff and Bishop’s children, one of the issues was the existence of a marriage. Plaintiff, in testifying in that case, was asked about this newspaper notice and whether the daughter had not read this public announcement and asked for an explanation. At that time she testified she had never mentioned the marriage to the girl before; that she did not talk about it to her and “knew it was none of her business; ’ ’ that on the heels of that newspaper notice, on the daughter’s demanding an explanation, she had told about the common law marriage and that she had kept it from the children at the request of their father. After the thunderstorm in October, 1894, the discovery made by the daughter and the explanations the next morning to her, the daughter brought her friends to the house and always introduced plaintiff as Mrs. Chandler until in 1898 when the second explanation was provoked by the newspaper publication. The publication sprang from the fact that plaintiff told the doctor she could not wait any more, “could not go on in this way any longer,” so she determined to have a “party” and get her name in the newspaper as “Mrs. Bishop.” Accordingly, a newspaper reporter came to the house and was told that Mrs. Bishop would have a party. Pressed' further, plaintiff testified that in October, 1894, the daughter, knew of the marriage from plaintiff’s lips. She also knew it from her father, for plaintiff overheard him telling her. Recurring again to her suit with the chil
In 1896 plaintiff took a chattel mortgage from Dr. Bishop, made to “Catherine Cochran.” She did not see the paper before it was executed, but it was to be recorded in the court house and she went there in a week or ten days and got it. It appears the chattel mortgage covered all his books, at least, and that she got them. [Note: It does not appear what other chattels were covered by the mortgage. Objections were made to the witness testifying to its contents. It was presently brought in by her, introduced by defendant and bore date April 29,1896. Galen E. Bishop was mortgagor and Catherine Cochran, plaintiff, in this case, was mortgagee. It secured a note of $7000.]
Resuming her testimony she.said she destroyed or lost her letters between 1894 and 1898. A great many of them were destroyed — to keep the children from knowing. After 1899 witness preserved some of her letters. Plaintiff was to receive $20 per month for work when she kept house for the doctor. In 1903 and 1904 she received letters from the doctor’s son (now dead) addressed to “Mrs. Galen E. Bishop.”
The niece who was to be a witness, Mrs. Spratt, testified that she was at Bishop’s home on the day of the putative marriage, was invited to come (by whom is dark) “to witness an agreement between Doctor Bishop and Mrs. Bishop. ” As she came he was leaving. He told her “that they had made their agreement, that arrangement, before I got there.” We infer
Evidence was tendered to the effect that she knew he was hostile to “formal marriages by preacher or priest” and “that he considered the only form of marriage was a common law marriage . . . and that he lived up to that.” This testimony was excluded and counsel for plaintiff saved the point. [Note: Testimony was tendered from other witnesses tending to show that the “belief” and “principles” of Doctor Bishop were opposed to the solemnization of marriages by the church or magistrates; that he believed in common law marriages. These offers were refused and counsel excepted.]
Resuming her testimony, the remainder of it was to the effect that, from the day of the turkey dinner, plaintiff had charge of the household “like any other woman.” She “had charge of the house entirely.” “Doctor Bishop called her Mrs. Chandler for a short time after that; not more than a week.”
William King, acquainted with Bishop for forty-five years, had two conversations with him about 1897. One of them was when Bishop was passing the house of witness. His wife was in the garden and Bishop said: “Your wife is just like mine; she is always out in the garden working in the flowers.” At another time Bishop saw witness driving a cow and asked her price. Witness declined to sell. Bishop said: “My wife has seen you passing. She (referring to the cow) just suits my wife.” This was before the “party.”
By Mrs. Watson, who lived' at Dearborn, Missouri, and published a newspaper there, it was shown that she heard her nephew, who was also the nephew of plaintiff, speak of the subject of the marriage “in March, 1894.” In October, 1899', plaintiff, with Anna Bishop, came to Dearborn and witness heard her call plaintiff
Solomon Fayman, a merchant, knew Bishop. He and plaintiff dealt with witness to some extent. Bishop paid the hills and told witness.“that Mrs. Bishop would buy some goods. ’ ’ This was ten or twelve years before Bishop died. Witness knew Bishop and plaintiff “as man and wife. ’ ’
Mr. Moore, clerk for a dry'goods house, testified plaintiff bought goods and had them charged to “Mrs. "Bishop” during the last ten or twelve years. She was known at the store as Mrs. Bishop, the wife of Dr. Galen E. Bishop.
Another witness, McAhan, was at a reception at Bishop’s house. He puts the date at 1895 or 1896. Something was asked there about addressing plaintiff and it was said she “should" be addressed as Mrs. Bishop.” Several young men and ladies, the Bishop children, Doctor Bishop and plaintiff were there. Witness was a newspaper man. It was plaintiff who said “they were married.” She requested that she should be addressed “as Mrs. Bishop.” At first plaintiff was known as Chandler, but after that as Mrs. Bishop.
A hardware merchant, Shatz, sold goods to Bishop. About twelve years ago plaintiff began trading there. Witness knew her as “Mrs. Bishop.” The goods were charged to Bishop and paid for by him.
Neudorff sold groceries to Bishop and plaintiff. Sometimes they came and took the goods away. Sometimes they sent in orders. Witness’s impression was that his name was signed by her to the order. The bills were charged to and paid by him. Witness “supposed she was Mrs. Bishop all the time.”
Another grocer,- Siedel, dealt with plaintiff and Doctor Bishop paid the bills. This was later than 1896.
Fulton, tenant in one of Bishop’s houses, went to the doctor’s house to see him about some repairs about 1901 or 1902. At that time the doctor told him he was married to a Miss Cochran. Witness asked, “how long?” The doctor, after replying, “About eight years,” looked over his shoulder to plaintiff and said, “Haven’t we, Mrs. Bishop?”
In 1901 an old country acquaintance of Doctor Bishop and plaintiff, one Dean, called to see him. At that time the doctor invited witness to his house to see his wife. He used the word “wife” two or three times in the conversation. Another country acquaintance, Maclnturf, met the plaintiff in Doctor Bishop’s office at some date between 1895 and 1900 and the doctor introduced plaintiff to him as his wife.
A credit man in a dry goods store, Shuler, testified that he knew plaintiff for ten or twelve years as Mrs. Bishop, that she would buy goods at the store and the tickets would come to the witness charged to G. E. Bishop as bought by his wife. They were put in the books that way and Bishop paid the bills.
Another witness, Davidson, from Dearborn, heard it rumored in the courtroom ten or eleven years ago that plaintiff and Bishop were married. The witness knew them both. He was shown- a newspaper published at Dearborn, dated November 3, 1899-, containing a notice that “Mrs. Doctor Galen E. Bishop and daughter, Miss Anna Lee, of St. Joseph, returned home Sunday night after a few days’ visit with Mrs. C. A. Stagner. ’ ’ Witness was a subscriber to the paper and located the courtroom rumor at about the date of the Dearborn rumor.
In 1900 plaintiff introduced herself to another witness, Mr. Gard, the principal of a business school, as
Another Dearborn witness, Miss Stagner, testified that in 1899 plaintiff and Doctor Bishop’s daughter visited the witness’s mother and she heard the daughter call plaintiff “mamma.”
Plaintiff also put in evidence from Wey, Shoemaker and Long to the effect that plaintiff bought goods and had them charged to Doctor Bishop who paid the bills and that they knew her as Mrs. Bishop.
Mr. and Mrs. Altwein lived in the neighborhood of Doctor Bishop for three years before he died. [Note: This would be from 1899 to 1902.] The Altweins knew the children addressed plaintiff :as “mamma” and that it was understood at that time in the neighborhood they were married.
Tn 1896 a Mr. Miller returned a strayed cow to Doctor Bishop. He wanted to buy the cow and Doctor Bishop replied: “Well, if Mrs. Bishop is willing, talk to her.” Witness always “thought” that plaintiff was Mrs. Bishop.
A year ór so before the doctor died another witness, Keedy, presented a bill and the doctor said: “I will take this home and see my wife.”
Another witness, Dunn, who used to go to the doctor’s office frequently, had seen the plaintiff in Doctor Bishop’s carriage near his office. Once, on a date unknown to the witness, he heard a lady in the doctor’s office ask him, “How is Mrs. Bishop?” and heard him say, “She is all right.”
Such was the evidence put in by plaintiff to prove the marriage. On defendant’s behalf, plaintiff’s abstract shows as follows:
“The defendant introduced evidence tending to show that the plaintiff went by the name of Chandler until in 1898, when she took the name of Bishop, and other evidence tending to show that Doctor Bishop called her his housekeeper for several years after she*717 went there. There was considerable evidence of this kind for the purpose of contradicting the evidence of the plaintiff.
“The defendants offered in evidence, certain deeds executed in 1896 by Doctor Bishop for the purpose of showing that in the acknowledgment he declared himself to be single and unmarried. The plaintiff objected to them as incompetent and irrelevant, and as self-serving, and for reason that no declaration that Doctor Bishop could make after the marriage could affect the marriage in any way, or would tend to destroy the contract. The court overruled the objection, and the plaintiff then and there at the time excepted.
“A number of deeds of that kind were introduced and also a notary public was introduced for the purpose of showing the declaration made in his presence when the acknowledgment was taken. All of this evidence í was objected to as it was not shown that Mrs. Bishop was present. The objection was overruled and the plaintiff excepted.”
Defendant filed a supplemental additional abstract, bringing up more of the record. It appears therefrom that one Story testified he had worked for Bishop off and on from the Civil War to his death. He knew the doctor’s first wife. In speaking of her Bishop always called her “my wife.” He knew the plaintiff when she first appeared in Bishop’s household as housekeeper. He saw for himself that she took the position of housekeeper. She was called “Mrs. Chandler.” The doctor always spoke to others of her as Mrs. Chandler. Witness never heard him speak of her as his wife. He knew of the “party” by reading of it in the newspapers. Next morning he was at the Bishop house and spoke to plaintiff as “Mrs. Chandler.” Plaintiff said to him: “Mr. Story, if you please, do not call me Mrs. Chandler any more; I am Doctor Bishop’s wife. I guess you understand it. ’ ’ That was the first time he ever heard her claim to be his wife. So far as
Referring to deeds put in evidence by defendant, the additional abstract shows that the notary public taking Doctor Bishop’s acknowledgment testified that he at the time stated he was an unmarried man and the notary certified to that fact in the certificates of acknowledgment. In the deeds Doctor Bishop- was described as “an unmarried man.’’
Doctor Steiner was plaintiff’s dentist from 1893 to 1899. He testified she introduced herself to him as “Mrs. Chandler.”
The additional abstract concludes as follows: “Neighbors, milliners, tradesmen and other people testified that from ’94 to ’99 they knew her as Mrs. Chandler, the housekeeper for Doctor Bishop-, and that she was reputed and understood to be that and not his wife.”
As shown by the abstracts, the bill of exceptions contains matter relating to a suit of the Bishop children against plaintiff, in which one of the issues was the validity of the marriage of their father. During the trial the record in the other case was offered by defendant as evidence on its behalf and was ruled out. Defendant’s abstract shows as follows:
“Upon discussion of said offer a great deal was said in the presence and hearing of the jury by the counsel on both sides respecting what said record contained and its .effect and meaning.”
Plaintiff’s abstract shows that while she was on the stand one of defendant’s counsel asked her if she didn’t take an appeal in that case. On objection the testimony was excluded. Thereupon counsel said they were going to offer the record in evidence. They as- | serted it was admissible, that they had authorities to I support the proposition. At that, learned counsel for- 1
On argument to the jury, the record shows as follows:
“Vinton Pike, one of the attorneys for the defendant, in his speech to the jury on the hehalf of the defendant told the jury a number of times that ‘this case had been tried once before in the court and decided against the plaintiff. ’ He further in his speech to the jury said: ‘ ‘ That if the jury should find that a common law marriage existed on such evidence, then the estate of Isaac Curd, John Brady and other old bachelors, who were well known by their neighbors and acquaintances to be single and unmarried, would not be safe, and deeds from them could not be taken to land with safety.’ As soon as said attorney began to make such statements, one of plaintiff’s attorneys objected to such line of statements, and each time he made any such statement, plaintiff stated that such argument was not based on any law or fact of record, and that such a course was done with the intention of prejudicing the jury against plaintiff and was improper and illegal, but the court permitted him to proceed over said objections and plaintiff then and there excepted to said rulings.
“Mr. Pike continued to argue said case, making the statements as stated above in different forms and words, and each time he made such statement, the plaintiff excepted to said statements, and the court permitted and allowed said attorney to say that a similar case had been tried once before in this court, and that if the jury should establish the doctrine of a common law marriage on such evidence, the estates of many prominent citizens would not be safe and the titles to real estate therefore would and might not be valid.”
During the argument the following record was also made:
*720 “After said instructions were given to the jury, the case was argued by the attorneys on their respective sides. R. L. Spencer, one of the attorneys for the defendant, in his argument to the jury said: ‘Having tried another case between this plaintiff and the children of Dr. Bishop, where the issues were the same, and also having participated in this trial, I have a theory which I will give to you based upon my experience in both eases.’ Mr. Spencer then proceeded to argue that there never was an understanding of a marital relation or anything akin to it between Dr. Bishop and the plaintiff prior to the garden party given at Dr. Bishop’s house in ’98 or ‘99, when as he insisted, the plaintiff cunningly procured the doctor’s consent to the publication in the newspaper of the party as given by Mrs. and Mr. Bishop. Mr. Spencer then proceeded to compare the statements of the plaintiff made on the former trial with statements made on this trial.
“The plaintiff objected to Mr. Spencer making any reference to what transpired on the former trial, and the court did not permit him to refer to the former trial, except in so far as the evidence in this case showed the proceedings in the former trial were pertinent to this trial, and permitted the attorney to address the jury on that subject, referring to what he claimed were the conflicting statements of the plaintiff on -the two trials. The plaintiff excepted to this ruling of the court.”
Counsel assign error in ruling on instructions, testimony and on remarks of counsel to the jury, arguendo. Contra, it is argued there was no reversible error. Not only so, but that plaintiff was not a competent witness to prove the marriage; that the court committed error in plaintiff’s favor in permitting her to testify to the contract; that without her testimony she made no case for the jury, or a very weak one; that the verdict was manifestly right and therefore
On such record, we rule:
I. Somewhat by innuendo it is argued! that the relations of Miss Cochran to Doctor Bishop during the lifetime of his first wife were meretricious. The argument travels on the theory that if such wanton and irregular status was established at that time it is presumed to continue and the burden shifts to plaintiff to show its sinister character altered. But the case need not ride off here on such narrow and sour theory. Such inferential claim of sexual looseness between them, during the lifetime of the first wife, takes form and color from suspicion rather than proof. Plaintiff said their then relations were “Platonic.” Assuming for appellate purposes that she not only knew, but that she was a competent judge (if not an actual devotee at the altar) of the rather cold doctrines of Plato, we will take her word for it, as the jury might have done —and let it go at that. For does not the benign and admonitory motto of the very Order of the Garter itself run: Evil to him who evil thinks? (Honi soit qui mal y pense.)
II. Was plaintiff a competent witness? The suit was in form to admeasure dower. The gist of the essential averments of the petition were: (1) marriage, (2) seisin, (3) death, (4) dower — the latter a sequence of the three former (Vide, R. S. 1899, sec. 2933). Such was the rule at common law and such it is in this State. I have read that Robert Toombs, appearing for a widow deforced of her dower, arose at the bar of the Supreme Court of Georgia and condensed his whole
Section 4652, Revised Statutes 1899, ordains, inter alia, that: “In actions where one of the original parties to the contract or cause of action in issue and on trial is dead . . . the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor.”
We' have often construed that section. Its general language breeds difficulty in applying it to the varying phases of litigation, and, it would seem, we have not always been able to hold a steady and unir form voice in applying it. There may be wrinkles in the statute not yet erased by the smoothing iron of justice, for there is an intense human factor in its, practical application appealing to different judges in a different way.
In interpreting the statute, exceeding care should be taken to steadily apply the main and golden rule of construction, vis., that not only the words but the spirit and purpose of the law should be kept In view, so that the mischief struck at should be retarded, on one hand, and the remedy contemplated should be advanced, on the other.
Observe, the statutory rule is one of evidence, hence the form of the action in which the rule is invoked is of no consequence in determining whether the rule is applicable. So, while the form of this action is dower, yet dower hinges on a contract of matrimony and its performance. As said, that was the issue tried.
Speaking of such a contract, Alvbt, J., in Denison v. Denison, 35 Md. l. c. 381, used language meeting our unqualified approval, vis: “ These loose and irregular contracts, as a general thing, derive no support from morals or religion, but are most generally founded in wanton and licentious cohabitation.”
The case, then, does not persuade us to stickle on words or stick in the bark in applying the statute. The rather we are inclined to consider it a typical one in which to apply the statute with rigid vigor.
Referring to an Illinois law, having the same purpose as our own, the Supreme Court of that State, through Mr. Justice Scott, In re Estate of Mark H. Maher, 210 Ill. l. c. 170, said: “This petitioner seeks to swear that she is heir, and thereby establish the relation which, when not conceded, must be established by the judgment or decree of a court before she can testify. If she is competent, then any woman with whom a man has illicitly and openly lived and cohabited, both being then unmarried, has it in her power, after his death, to establish the fact that she is his widow, by testifying that a contract of marriage was
The question has received , consideration by our courts of appeal. [Imboden v. Trust Co., 111 Mo. App. 220; Collard v. Burch, 138 Mo. App. 94.] Our learned brethren of both those benches with one accord agree that the statute applies to a case in which the marriage was disputed and its existence was the very lis mota. [See also Hopkins v. Bowers, 111 N. C. 175; Sorensen v. Sorensen, 56 Neb. 729; Shorten v. Judd, 56 Kan. 43.]
Ye are not confronted with a contrary ruling in any case decided by us in which the point was held in judgment. Cases may be found in which the alleged widow testified without objection. They are, of course, without authority. There are others in which the marriage was not disputed and was not the issue on trial, where the widow was permitted to testify to the fact of marriage. That is a mere rule of convenience to avoid cumbering the record on non-controverted and collateral matter. Such case, on principle, differs vastly from the case at bar.
Defendant’s objection to the competency of plaintiff as a witness should have been sustained.
III. Of the instructions. Some were given. Many were refused on both sides, others modified. Before considering assigned error in this particular, some preliminary observations are not amiss. Our statute, Revised Statutes 1899, section 4311, reads: “Marriage is considered in law as a civil contract, to which the consent of the parties capable in law of contracting is essential.” The statute does not in terms abrogate the rules of the common law relating to marriage. While it provides for official licenses to marry, the
While we may speak of marriage as a civil contract, yet that is a narrow view of it. The consensus of opinion in civilized nations is that marriage is something more than a dry contract. It is a contract differing from all others. For instance: Only a court can dissolve it. It may not be rescinded at will like other contracts. Only one such can exist at a time. It may not exist between near blood kin. It legitimizes children. It touches the laws of inheritance. It affects title to real estate. It provides for the perpetuity of the race. It makes a hearthstone, a home, a family. It marks the line between the morals of the barnyard and the morals of civilized men, between reasoning affection and animal lust. In fine, it rises to the dignity of a status in which society, morals, religion,, reason and the State itself have a live and large interest. It is not necessary for us to rule that if Henry and Henrietta contract to marry with the solemnities prescribed by statute and Henry die before the consummation of the marriage,. Henrietta is not his widow. Nor is it necessary to rule that if Paul and Paulina publicly take each other as man and wife and publicly agree in words of the present tense to assume that relation, and that contract is proved by its very publicity and the presence of witnesses, so that the world may'know it is gravely made, it is not a valid marriage in Missouri without being further consummated. When Paul under such circumstances dies before such consummation, and such case is here, we can pass on it.
Defining “cohabit” (Webster’s New Internal Diet., tit. cohabit) we find the following: “To dwell or live together as husband and wife. In the United States at the common law, marriage is presumed when a man and woman have cohabited permanently together, being reputed by those who know them to be husband and wife, and admitting the relationship. . . . The act of cohabiting does not necessarily imply coitus.” We may add that while copula may not be an essential element, yet it is by law presumed in cohabitation, and its absence is significant as against nature.
These general observations bring us to a point raised, viz.:
(a). The court modified several instructions asked by plaintiff by inserting clauses requiring the jury to find, in effect, that plaintiff and Bishop, following the alleged contract to marry, lived and cohabited together as man and wife. These amendments were objected to and error is assigned in that behalf, but as plaintiff was not a competent witness to prove the contract and as without her testimony the proof of the contract rests in admissions to Mrs. Spratt and a few others, as fortified by faint proof of repute and of the assumption of the relation of man and wife, we think
This holding is within the doctrine of well considered cases, for example,:
In Lorimer v. Lorimer, 124 Mich. 631, after review of cases, Moobe, J., summed up by saying: “But at no time has it been said that, in the absence of a valid marriage ceremony, a simple agreement to live together, even though the parties intended to carry out the agreement, is sufficient to constitute a valid marriage, unless acted upon by living' together and cohabiting as husband and wife.” He cites- Judge Coóley, who in Hutchins v. Kimmell, 31 Mich. 126, ruled: “Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations,”
A profound law-writer, Bishop (1 Bish., Mar., Div. and Sep., see. 380), incorporates into his text a part of Lord Westbtjby’s opinion in Campbell v. Campbell, L. R. 1 H. L. Sc. 182, 211, as follows: “Cohabitation as husband and wife is a manifestation of the parties having consented to contract that relation inter se. It is a holding forth to the world, by the manner of daily life, by conduct, demeanor, and habit, that the man and woman who live tog-ether have agTeed to take each other in marriage, and to stand in the mutual relation of husband and wife; and, when credit is given by those among whom they live, hy their relatives, neighbors, friends, and acquaintances, to these representations and this continued conduct, then habit and repute arise, and attend upon the cohabitation.
Mr. Bishop adds: “The cohabitation must be matrimonial. The repute, to have its fullest effect, should be uniform. It then casts on the party denying the marriage the burden of proving that it did not take place. Still, in.some circumstances, a preponderating repute of marriage has been accepted as adequate.”
In Topper v. Perry, 197 Mo. l. c. 546, Gantt, J., said: “When the consent to marry is manifested by words de presentí, a present assumption of the marriage status is necessary. ” The language of our learned brother must, of course, be construed with reference to the case in judgment, vis., a common law marriage. See, also, Cargile v. Wood, 63 Mo. l. c. 513.
The point in hand is ruled against plaintiff.
(b). The court refusing for plaintiff the following instruction, her counsel assign error:
“The court instructs the jury that if they believe from the evidence in this case that from and after January 1, 1894, the plaintiff and Dr. Galen E. Bishop, deceased, lived together as husband and wife, and that she was reputed to be his wife and that he recognized her as his wife, then the law presumes that she is his wife.
“The presumption of marriage from cohabitation and residing together as husband and wife is one of the strongest presumptions known to the law; the law presumes morality and not immorality, marriage and not concubinage, legitimacy, not bastardy.”
It will be observed the instruction is divided into two rather independent clauses; the first says that from living together as husband and wife and that she was reputed to be his wife and that he recognized her as his wife, if the jury find it to be so, then the law presumes she is his wife. The second clause deals with the general presumption of innocence in cohabitation and residing together as husband and wife.
This woman, who, on a secret so-called marriage, assumed in the household, among its visitors and in the neighborhood, the name of a widow, vis., Mrs. Chandler, thereby living an admitted lie, who allowed her putative husband to borrow money and convey real estate as a single man without lifting a finger in protest, who years after his death claims dower in a valuable estate that had passed to an innocent purchaser, who two years after the marriage took a chattel mortgage in her maiden name from him, whose marriage was never blessed or blazoned by rites of church, the ceremony of civil magistrate or by public record, who defiantly, though of mature years and self-asserted intellectuality, ignored public policy, the conventionalities and the law, ought not to complain if' that law requires substantial proof and a high standard of it to establish marriage. The instruction would have permitted a recovery on proof falling much short of the character outlined.
As to the second clause, it leaves out the element
We said in Cargile v. Wood, 63 Mo. 513: “Cohabitation and reputation are at best only presumptive proofs, and when one of these foundations is withdrawn, what remains is too weak to build a presumption on. There is good sense in the Scotch law, by which cohabitation alone is considered insufficient, and which requires in addition habit and repute, because it is said the parties may eat, live and sleep together as mistress and keeper without any intention of entering into marriage. Cohabitation is simply the first step, and when that is accompanied by an acknowledgment of the matrimonial relations, and treating each other as man and wife, and holding one another out to the world as such, there may reasonably be a presumption founded upon all these facts that the intercourse is lawful instead of meretricious.”
The instruction was properly refused. We shall not reproduce the other instructions. They were carefully drawn and gave the plaintiff all the law she was entitled to.
IV. Of error assigned on rulings on testimony.
(a). While exceptions were taken to the admission of certain deeds executed by Bishop as a single man between January 1, 1891, and the date of the publicity party in 1898 or 1899, yet we do not see that counsel assign error in that particular. But if we are mistaken, the point is not sound. The execution of such deeds were acts of the alleged husband tending to show he was not married, that there was no public recogni
(b). Tbe main assignment is tbe exclusion of testimony tending to show that Doctor Bishop believed in common law marriages. The offer was to get at his sentiments through his admissions to two or three friends. The theory of this line of testimony is that if he believed in such marriages he would likely carry his belief into action, that plaintiff was entitled to the proof in order to predicate an argument on the proof to the effect that he carried out his belief. One vital flaw in this offer consists in the fact that it takes two to make a bargain in matrimony. If one believes and the other does not, the belief of the one does not tend to prove the contract. If this were not so, then, as plaintiff did not believe in common law marriages under this record, her lack of belief disproves the contract by the same token, ergo, the evidence leaves» the issue where it found it.
Appellant’s counsel, excellently equipped with learning, cite us to no authority for the proposition. We know, then, it is strange and fear it is new. As all things are confirmed or impugned by either reason or authority, let us look to its reason and see how the principle would work in practice. Suppose the issue be an act, a fact, for instance, some sin or delinquency —drunkenness, lying, profane swearing, anger, or laziness will do. Under this new doctrine the door would be opened wide to evidence on a collateral issue, viz., that the party charged with the act, fact or delinquency did or did not believe in drinking, in lying, in swearing, in anger, in laziness as a correct ethical proposition— the argument being that, if he believed in none of them he did none of them or, e converso, if he believed in them, he did all of them. There would be startling results reached by that method of reasoning; for, verily, many a man lies who down in his soul believes in truthfulness, and drinks who by precept teaches the
"We are of the notion that if this court is ever to adopt the ingenious theory of learned counsel, it should be in a different case from the one at bar. The time is not ripe for rash innovations in the rules of evidence to establish irregular marriages. After all, the fact of marriage, not the belief of Bishop, was the issue. A belief is not a habit, or a characteristic. Some men change their beliefs as they change their coats. So, they talk at random on them for argument’s sake. There is no presumption of law or fact that men, in their actions, always live up to the high-water mark of their beliefs on- ethical questions, and, unless the offered evidence has a logical connection, with the ultimate facts to be proved, it has no place in a lawsuit. If the belief of Bishop was the issue on trial, there would be a different question here. We are of opinion the testimony was improper. Hence, there was no error in excluding it.
Y. Finally, error is assigned in the ruling on objections to remarks of counsel to the jury.
(a). We see no error in the ruling on Mr. Spencer’s remarks. He said he had a theory. Counsel are entitled to theories. He said his theory was based on his experience in two suits. The record shows there were two suits in which the right to dower was litigated, and that the jury knew that fact. The only thing he stated as a fact, that the jury did not know, was that he was an attorney in the first case. It would not do to disturb the verdict because counsel, by way of inducement to lend color to his conclusions, spoke of his professional connection with a certain case. The record shows that “the court did not permit him to refer to the former trial, except in so far as the evi
(b). But so much cannot be said for the remarks of Mr. Pike and the ruling of the trial court. It was beyond the bounds of legitimate argument to refer to a decision against plaintiff in a former case. There was no evidence showing a former decision against her, and the tendency of that line of argument was to persuade a favorable verdict by indirectly pointing to the path the former jury took. Do, said counsel in effect, as your neighbors under oath did in the other case. The court should not have permitted the argument. It was not the way to get an honest verdict on the facts of the case. But the question is not: Error or no error? The question is: Reversible error or nonreversible error? The statutory rule is (R. S. 1899, sec. 865): “The Supreme Court . . . shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant . . . materially affecting the merits of the action.” We must not only believe that error was committed against appellant but that it materially affects the merits. We have no such belief in this case. Because:
(1). If the case were close on the facts and there were sharp conflict on them, the • question of the exclusion or admission of certain evidence is much more significant than where the facts run in a broad and deep current against appellant. [Chlanda v. Transit Co., 213 Mo. 268.] In a close case the adage applies: It was the last hair that broke the camel’s back. The same principle applies on improper remarks of counsel. This is not a close case on the facts. To the contrary, they lie overwhelmingly on the side of defendant. Up
(2). But this is not all. The record shows the fact of a former case, in which she testified on the same issue, was before the jury. It shows that before the jury, and prior to the time the verdict in the former case had been announced by .defendant’s counsel, one of plaintiff’s counsel stated that he had a stipulation setting the verdict aside. This announcement was made when a question was asked her if she hadn’t appealed from the judgment in that ease. Counsel should have confined themselves to an objection to that question. The question was overruled but before it was overruled announcement was made that the stipulation to set it aside existed. The situation then was this: one side, by the question relating to the appeal, intimated the judgment was adverse to her, while the other side baldly announced the judgment was inoperative because of the stipulation. The record shows that afterwards there was a discussion in the presence of the jury relating to the issues tried and the judgment rendered. This arose
(3). The ad hominem argument by which the jury was pointed to certain old and rich bachelors in St. Joseph whose free right of conveying their real estate might be impinged upon by an adverse verdict against his client, was a mere oratorical conceit or flourish, a flight of jocular fancy. Instead of real names of real men counsel might have used straw men and straw names to serve his hypothetical purpose. That he did not do so gave a touch of local color to his conceit but did not inject the poison of reversible error. The' bachelors named had ground of complaint, but not plaintiff.
There are other points made. We deem them immaterial. The premises considered, the judgment was right and is affirmed.