118 Minn. 60 | Minn. | 1912
Arthur O. Shattuck, a resident of this state, died at his home in Minneapolis on the nineteenth day of May, 1910, leaving a last will and testament in and by which he devised and bequeathed his prop
It is contended by appellant (1) that the court below erred in denying the motion for judgment notwithstanding the verdict for the reason, as claimed, that the evidence is wholly insufficient to support the conclusion that respondent and decedent ever became husband and wife; and (2) if that contention be not sustained, that a new trial should have been'granted for errors committed on the trial to the prejudice of appellant.
1. Our examination of the evidence leads to the conclusion that the question in issue was properly submitted to the jury, and that the verdict is fairly supported by sufficient competent evidence. It would serve no useful purpose to discuss the evidence in detail, or the facts at any considerable length. The case is brought within the rules sustaining respondent’s contention that she was the lawful wife of decedent, and the court properly denied appellant’s motion for judgment notwithstanding the verdict. There was no ceremonial marriage solemnized in conformity with the statutes of the state, and the marriage relation between them arose, if at all, at common law, by their mutual assent or agreement to become husband and wife, and their conduct in subsequently assuming that relation. Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 34 L.R.A. 384, 61 Am. St. 419.
The evidence shows, or tends to show, that the parties had for some years been intimate associates and friends, though no improper conduct transpired between them prior to the date on which it is claimed the marriage agreement was entered into. At least the jury was justified from the evidence in so finding. When the acquaintance be
It is probably true that general publicity was not given to the relations now relied upon as establishing the marriage, but that fact is not conclusive that the relation did not in fact exist. Hulett v. Carey, supra. There are also items of evidence offered by appellant which tend quite strongly to negative the existence of the relation of husband and wife, but the force and effect thereof was for the consideration of the jury. We need not refer specially to this testimony. It is sufficient to say that we have given it due consideration, and are of opinion that it does not as a matter of law
2. Several assignments challenge certain rulings of the court in the admission of evidence and portions of the charge to the jury. These we have carefully considered and discover no sufficient reason for a reversal.
Respondent was permitted to state to the jury certain reasons why the alleged marriage agreement was to a certain extent not given general publicity, namely, that her son, then living but since deceased, was opposed to her second marriage, and she desired to keep the fact from him. This evidence was under the rule stated in the Hulett case, supra, competent and proper. The fact of secrecy is at most evidence that no agreement of marriage was entered into. Other evidence complained of as improper and prejudicial was given by witnesses Dougherty and Mills, and tended to show conduct between the parties subsequent to the date of the alleged agreement of marriage, from which an inference of marriage might arise, and was proper as corroborative of respondent’s theory of the case.
A large number of assignments relate to the instructions of the trial court. We have examined them and find no reversible error. The charge of the court was somewhat extended, and dealt, as did the instructions in the Hulett case, quite fully with every feature of the issue, the pertinence of particular evidence, its bearing upon the general question, and stated to the jury clearly the rules of law guiding their consideration of the case. It is quite clear, taking the charge as a whole, that the learned trial court did not intend the jury to understand that,’ in the absence of evidence of an express agreement of marriage, the marriage relation could be found from either cohabitation or general repute. While one statement in the charge seems to so state, other portions indicate a purpose to require both' facts to be established. At any rate, we find no ground for reversal upon this question.
No exceptions were taken to the charge at the trial, and, if counsel thought the particular statement was likely to mislead the jury,
Order affirmed.