Bowman v. Little

Pearce, J., dissented and delivered the following opinion. I have heretofore expressed my conviction that dissenting opinions should be rarely indulged in. The conclusions of the Court, after argument and deliberation, always carry with them the presumption of correctness, and frequent dissents weaken the voice of authority without commending the dissenter. Even when it is felt to be a duty to dissent, it does not follow that it is always wise to assign reasons therefor, ²⁹⁸ but after a sincere attempt to reconcile myself to the disposition of this case, I have not been able to do so, and as it deals with a question of vital importance to the social and domestic fabric, in a form never before presented in this State, I feel that I am justified in expressing the views which I am unable to yield to those of my brothers.

The Circuit Court rejected the defendants first and second prayers, which are transcribed in full in the opinion of this Court, the first asking an instruction that there was no legally sufficient evidence of the identity of George Walter Bowman, referred to in the record of the marriage in Camden, New Jersey, offered in evidence, with the George Walter Bowman whose estate is the subject of controversy in this case; and the second asking an instruction that there is no legally sufficient evidence of the identity of the Catherine McGranagan referred to in the record of said marriage, with the plaintiff in this case. This Court holding these prayers should have been granted, it became immaterial to inquire whether there were other errors in the rulings in the record, since there could be no recovery by the plaintiff without proof of such identity. In my opinion these prayers were properly rejected for the reasons which I shall endeavor to state, and in that connection I shall consider the plaintiff’s fifteenth prayer, which was rejected, and which asjced an instruction that the similarity of names in the record of the marriage at Camden, New Jersey; with the names of the plaintiff and the defendants intestate,raises a presumption in law that the persons are the same. Certainly, proof of the marriage of the plaintiff at the time and place alleged by her, is indispensable to her recovery, but in inquiring “what kind of evidence is necessary to establish that status or relation, and of what probative value it should be,” it is not necessary to controvert that there must be‘‘strict proof” of such marriage “as an actual fact,” as stated in Taylor v. Taylor, 5 Eng.

Ecc. Rep. 454. I do not understand however that “strict proof,” either as applied to identity of persons, or any other issue of fact, is the equivalent of mathematical demonstration, or that in determining the identity of ²⁹⁹ parties to an alleged marriage, it can only be satisfied by the testimony of living witnesses to the performance of the marriage ceremony. The word “strict,” is defined in the Century Dictionary as, “exacting, rigorous, severe,” and that definition best accords with the general acceptation of the word.

There are degrees of strictness, and strict proof is not strictest proof. Shakespeake speaks of “strict statutes,” of “more strict restraint,” and of “ strictest degrees." Inlaw, “strict construction excludes mere implications, but does not require a literal and blind adhesion to mere words.” Thus the rule that attachments can only be sustained on “strict compliance” with the terms of the statute has been construed to mean, by a substantial compliance therewith. 27 Am. & Eng. Enc. 189. The case of Jones v. Jones, 45 Md. 144 , cited in the opinion in this case to sustain the ruling of this Court upon these prayers, I conceive to be authority for the ruling made by the lower Court in refusing them.

That was a case of issues to a jury involving the proof of an alleged,marriage, and one of the defendant’s prayers concluded with an assertion that there was no evidence of any such marriage. This was refused by the Superior Court of Baltimore City, and in affirming this ruling Judge Alvey said, “Whatever we may think of the verdict as the result of the tvhole evidence in the cause, this Court will not say that the entire case, or the consideration of any particular question involved in it, should be taken from the jury, upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there be any evidence from which a rational conclusion may be drawn as opposed to the theory of such prayer. Before such a prayer can be granted, the Court must assume the truth of all the evidence before the jury te7idingto sustain the claii7i or dcfe7isc, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence, a7id this though such evidence be contradicted Í77 every particular by the opposÍ7tg evidence m the cause. Upon no other principle can the case be withdrawn from the consideration of the jury, who alone are competent to decide on facts of which contradictory evidence has been given.

But ³⁰⁰ upon the other hand, where the evidnnce is of such light and inconclusive nature that no rational conclusion can be fairly drawn therefrom in support of the claim or defense sought to be maintained by it, it becomes the imperative duty of the Court to instruct the jury that such evidence is not sufficient to be considered by them, and that their finding should be accordingly.” The italics in the above quotation are mine. The principles there announced had been declared in earlier cases, and have been repeated in later cases, and I have only cited the passage here for the purpose of showing that those principles have been applied, without limitation or qualification, to a case involving the fact of marriage, and that there is no reason disclosed why they should not be applicable when the particular question under consideration happens to be the identity of the parties to an alleged prior marriage and the consequent validity of a subsequent marriage. It is no answer to the principles laid down in the passage I have cited from Jones v. Jones, supra, to say that “the law favors morality and not immorality, marriage and not concubinage, legitimacy and not bastardy.” These are wise and righteous presumptions, but they are presumptions only. When confronted with evidence, that evidence must be considered, and when met by preponderating evidence those presumptions must yield to such evidence, as other presumptions must, whatever may be the result; and that evidence must be submitted to the tribunal which deals with all the other evidence in the case, under the uniform rule which governs the Courts in determining upon the legal sufficiency of evidence, irrespective of the particular question to which it is addressed, unless the presumption be one of the few which are conclusive in law.

The tendency has long been to narrow the list of conclusive presumptions, and “Courts are now everywhere inclined to abandon the arbitrary rules of evidence which formerly forbade inquiry into the real facts.” 1 Jones on Evidence, sec. 10. If the rule for which I contend be not correct, then a case may be withdrawn from the jury upon some other principle than that which Judge Alvey has declared to be the ³⁰¹ only principle upon which any case, or the consideration of any question involved therein, can be withdrawn. In order to justify this dissent, I must recite the evidence admitted (without exception) as touching these two questions in the case. The marriage certificate which the Court holds to constitute no evidence, either alone, or in Conjunction with all the other evidence in the case, legally sufficient to establish the identity of either of the parties mentioned therein, appears twice in the record, first upon page 19, where it appears as Exhibit B, filed in the Orphans’ Court with the plaintiff’s petition, claiming to be the widow of George W. Bowman, and again on page 24, where a duplicate, certified ten months later than the former, was filed with the depositions taken in New Jersey.

In the copy, as transcribed in the opinion of the Court, the residence of George W. Bowman is given as Haleystown, Md., but in both certificates as they appear in the record, his residence is given as Hagerstown, Md. It is true that in the plaintiff’s petition, she herself states that said residence was written Haleystown instead of Hagerstown, in said certificate, but this averment is not sustained by either of the certificates set out in the record, and these certificates are not only better evidence than the averment of the petition, but the only evidence of their contents, which can be accepted, in the absence of a specific agreement of the parties as to the alleged error therein. I allude to this here, because in the opinion of the Court, it is said that this certificate, for that reason, does not show, that the George W. Bowman named therein, was from Hagerstown, but does show that he was from Haleystown, and therefore that he was not the same George W. Bowman whose estate is here in controversy. But even if so written in the certificate, it being admitted without exception, I apprehend that alone would not deprive the jury of the right to consider the certificate, in connection with all the other evidence in the case tending to establish the identity of these parties, any more than would the fact that the certificate gives Catherine McGranagan’s residence as E. Harrisburg, Pa., while her ³⁰² mother gives her residence as Harrisburg, Pa. These slight discrepancies, or ambiguities, are at most but "contradictions,” which under the rule in Jones v. Jones, supra, are for the decision of the jury and not of the Court.

The certificate states that the George W. Bowman named therein, was a confectioner by occupation, and that his father’s name was George R. Bowman. The record of the return of this marriage (page 24 of the record) states that his mother’s maiden name was'Green-wait. It states that Catherine McGranagan named therein was the daughter of John McGranagan and Sarah Weaver, his wife. It is of course admitted that there must be evidence of the identity of the parties, beyond the mere statements contained in the certificate, but these statements are abundantly confirmed by the uncontroverted testimony of living witnesses in the case.

Dr. Wareham testifies that he knew George Walter Bowman, that his father was George R. Bowman, who was a confectioner; that the maiden name of George Walter Bowman’s mother was Greenwalt; that he knew the plaintiff; then sitting in' his presence, as the wife of George Walter Bowman; that he was his physician for about twenty years for his first and second wife; that at the time he knew plaintiff, she was living in a house in Hagerstown on North Walnut street, in which the plaintiff and George Walter Bowman lived, and that it was at that time Bowman employed him to attend her as his wife, and that there was no one else living there to his knowledge. Clyde B. Furst, a nephew of George Walter Bowman, testified that Bowman’s father was a confectioner, named George R. Bowman, and that George Walter Bowman’s mother’s maiden name was Greenwalt; and that George Walter Bowman was a clerk in his father’s confectionery store; that in 1890, he himself left Hagerstown for college, and after that was only home for visits. Mrs. Zimmerman testified that Catherine .McGranagan was her daughter by a former husband named Boyer; that she was born July 1 ith, 1863, which agrees with the certificate made July 12th, 1887, where her age is given as twenty-four. ³⁰³ Mrs. Zimmerman testifies that her daughter was adopted when she was between two and three years of age by John Mc-Granagan and Sarah, his wife, whose maiden name was Sarah Weaver, and a certified copy of an order of the Court of Common Pleas of Dauphin County, Pa., made in November, 1868, shows the legal adoption by John McGranagan and Sarah, his wife, of the child of Joanna Boyer, under the name of Catherine McGranagan. Mrs. Zimmerman further testified that in July, 1887, George W. Bowman, whom she then first knew, came with her said daughter to her house in Harrisburg, stating that they came from Camden, New Jersey, where they had just been married, and that in the fall of the same year she visited them in Hagerstown on Walnut street, where they were living together, where she continued to live for a year or two.

Mary R. Westwood testified that her father, John R. West-wood, by whom said marriage ceremony purports to have been performed was on July 12th, 1887, pastor of the Third Street Methodist Episcopal Church in Camden, New Jersey, and that her name was signed by her as a witness to said marriage; that her father died in 1900, and that she witnessed many of his marriage ceremonies, and has no independent recollection of this ceremony. George B. Wright, secretary of the Methodist Episcopal Conference of New Jersey, testified that Mr. Westwood was regulary ordained as a minister of the gospel in his presence in March, 1874. Charles A. Little testified that he knew George Walter Bowman whom he called also George W. Bowman; that his father’s name was George R. Bowman and his mother’s name Catherine B. Greenwalt; that his father was a confectioner, and he himself was engaged in the same business for a time; and that he lived mainly in Hagerstown, but was away from there for a period of his life. Why all this evidence, pointing as it seems to me, directly and plainly to the identity of both these parties, should be withheld from the jury, I am notable to see.

In the opinion of the Court it is said, that the certificate ³⁰⁴ gives Bowman’s age as twenty-five, “when according to the evidence he was twenty-seven years of age;” but I can find no direct evidence to that effect. The only reference to his age in the testimony, is made by Clyde B. Furst, who says, “I do not know my uncle’s age exactly but think he was born about i860.” If so, he was 27 in 1887, but this witness testifies that he left home for college in 1890, and if he was then twenty, which is above the usual age of entrance to college, he would appear to have been born in 1870 and could consequently .have no personal knowledge of the age of one born in 1860. But he disclaims knowledge and professes only to give his opinion. Again, the Court says, “Catherine Mc-Granagan actually lived in Hagerstown” when the certificate gave her residence as E. Harrisburg.

But I cannot find any evidence of her residence there prior to the date of the marriage in this certificate. Mrs. Zimmerman says, ‘.‘After my daughter left Harrisburg she was in Hagerstown for a year or two,” but she nowhere says that she ever left Harrisburg before the alleged marriage-with Bowman. Irvin Bitner testified-that he had li.ved.in Hagerstown since 1877 and was a Justice of the Peace for about twenty years, and that “within that, time he knew a woman named Edith Boyer who lived in Hagerstown,” but he did not say, and was not asked, at what period within the twenty years. The only dates he fixes are October, 1887, and April, 1888, both subsequent to the date given in the marriage certificate.

Neither Wassen nor Benner give any date whatever when she lived in Hagerstown, so that I am at a loss to discover any testimony that her residence was in Hagerstown when the marriage ceremony was performed in Camden. Again, the Court in its opinion, speaking of Mrs. Zimmerman’s testimony relating to her visit to the plaintiff in the fall of 1887 when she lived with Bowman on Walnut street, says, “this is just as consistent with concubinage as with matrimony, when it is remembered that the house on Walnut street was a house of ill-fame. ” The only evidence I can find in the record as to any house of ill-fame in Hagerstown is the testi_ ³⁰⁵ mony of Wassen and Benner who say that the plaintiff “was an inmate of a house of ill-fame in Hagerstown known as the Arnold House and that afterwards she lived on North Walnut street which was frequented by George Walter Bowman and a number of young men who are dead.” Neither of these witnesses fixed any date when she was an inmate, of the Arnold House, nor do either of them say the Walnut street house was a house of ill-fame. But if we assume it was such, I am unable to see how that can affect the question to which alone the prayers under consideration are addressed, viz, the identity of these parties. A prostitute may be made a lawful wife, by a valid ceremonial marriage, where the husband has knowledge of the character and conduct of the woman he takes to wife, and a divorce is as necessary to dissolve such a marriage as any other.

If she becomes impure after marriage, and he continues to cohabit with her after discovery, he condones the offense, and her conduct affords no ground for a divorce, which could not, in such case, be presumed to have been obtained. When, as in Jackson v. Jackson, 80 Md. 192 , and 82 Md. 132 , it is sought to establish the fact of marriage by the mere presumption arising from cohabitation and repute, evidence of want of chastity before the alleged marriage, and during the period of cohabitation, is admissible to rebut the presumption that the cohabitation was the sequence of lawful marriage, but it cannot tend to disprove a lawful marriage established by proper evidence, nor can it reflect any light upon the question of the identity of the parties to the alleged marriage, and if it did, that would be a consideration for the jury. Suppose that there was no allegation of a second marriage in this case, but that there was issue of the alleged marriage with Catherine McGranagan, and that Clyde B. Furst, the nephew of the deceased, who, in that situation, would be entitled to the whole of his personal estate if the marriage with Catherine McGranagan were not established, was seeking to withdraw the case from the jury upon the question of the identity of the parties, upon the same testimony given here. ³⁰⁶ If he should succed in that effort, the result would be to bastardize the innocent issue of that alleged marriage. Can it be supposed that in such case the Court would say there was no evidence legally sufficient to prove the identity of the parties to that marriage ?

And if sufficient in that aspect of the case, why not in the present aspect of the same case ? The probative force of testimony offered to establish an alleged marriage cannot be held sufficient for the jury where there is issue of the marriage, and insufficient where there is none, nor can it be excluded merely because it may tend to bastardize the issue of a second' alleged marriage, nor admitted merely ■because it may operate to relieve the issue of a contested marriage. The legal sufficiency of testimony to prove any fact in issue depends exclusively upon its relevancy to that issue, and its probative force as applied to that fact alone. It cannot be made to depend upon any mere adverse presumption, nor upon how it may affect the result of the case..

It must depend solely upon its quality as the basis of any rational conclusion as to the fact in issue, and it cannot be held sufficient, merely to accomplish a certain result, however favored in morals or in law, and held insufficient merely in order to defeat a contrary result, however deprecated. I therefore think the Circuit Court .was clearly correct in rejecting the defendant’s first and second prayers,’ and in submitting the identity of the parties to the determination of the jury. The plaintiff’s fifteenth prayer asserted the proposition that “the similarity of names in the marriage certificate offered in evidence by the plaintiff, with the names of the plaintiff and the decedent, G. Walter Bowman, raises a presumption that these persons are the same,” but it was refused. None of the prayers, except the defendant’s first and second prayers, were discussed in the opinion of the Court, and the plaintiff’s fifteenth prayer would not be adverted to here, but for the fact that it is addressed to the same question of identity so fully considered by the Court in passing upon the defendant’s first and second prayers.

I think it should have been granted. The opinion of Judge Stone in the Circuit Court in Brooke v. ³⁰⁷ Brooke, 60 Md. 528 , as to the identity of Henry Brooke, printed at length in the report, and approved by the Court in affirming the judgment, affords strong support for this instruction, and the law was distinctly so declared in Clark v. Pear son, 53 Geo. 496, and in Wilson v. Holt, 83 Ala. 528 . In the former case it was held that the identity of the name and county of the person in whose name the action was brought with the name and county of one on whose estate administration had been previously granted constituted prima facie evidence that such plaintiff was dead. In the case at bar, this prima facie identity is strengthened by the confirmation of the description of Bowman’s occupation, and the names of his parents, as well as the names of Catherine McGranagan’s adopted parents, as given in the marriage certificate.

In the Alabama case, Dr. Robert S. Wilson had been divorced in Georgia at the suit of his first wife, and had married again in Alabama where the law prohibited the marriage of the guilty party. To sustain the validity of his subsequent marriage, reliance was placed upon an Act of the General Assembly of Alabama relieving Robert S. Wilson of all penalties and disabilities which by law attach to persons from, or against whom, a divorce has been ordained in any State. It was held that the identity of name in this Act, with that of the complainant’s father, who was then a resident of Montgomery County, Alabama, was prima facie evidence of identity of person, and was sufficient proof of the fact, unless it was shown that the name was a very common one in that part of the country, or unless there were other facts throwing doubt on the supposed identity; and in support of this ruling the Court cited Wharton on Evidence, sec. 701. That case involved title to land, and this title depended upon the validity of Dr. Wilson’s seeond marriage, which in turn depended upon his identity with the Robert S. Wilson whose disabilities were removed by the Act of Assembly mentioned.

In section 99 of Jones on Evidence, a number of cases are cited sustaining the principle and illustrating its application, and also in a nofp to Rupert v. Penner, 17 L. R. A. 824. ³⁰⁸ The opinion of the Court sustained all the rulings of the lower Court in refusing all the questions propounded to the plaintiff when offered as a witness in her own behalf. The lower Court stated the ground of this ruling to be that she was not a competent witness in this cause under ch. 661 of 1904, but with that ruling I cannot agree. The Act works only a partial exclusion, i. e., as to “any transaction had with or statement made by the intestate, unless called to testify by the opposite party, or unless the testimony shall have already been given in evidence concerning the same transaction or statement.” I do not understand that the Court adopts the ground of these rulings, though it finds no error in them; stating that the evidence thus excluded “either tended to prove the identity of the plaintiff, or it did not. If it did it was inadmissible because she was incompetent to prove that identity.

If it did not tend to prove her identity, it was irrelevant.” But with this I cannot agree. I do not of course dispute that she could not herself testify to the fact of her marriage at the time and place alleged', that being “a transaction had with the deceased,” but I do not understand that she was incompetent to testify to any independent fact, not being a transaction with, or statement made by the deceased, merely because that fact, when established, would tend to prove' her identity. Nor does it follow that the proffered testimony was irrelevant unless it tended to prove her identity. The third and eighth exceptions, which related to her present name, and to the desl ruction by Bowman of her marriage certificate, I think were correctly ruled on, as relating to transactions had with the deceased, and perhaps the fourth which related to her maiden name may come within this category, but the fifth, which asked her mother’s name, where she was born, where shelived on July 12th, 1887, the name of her father and where he lived at that time; the sixth which asked where she was on July 12th, 1887, and if she ever met John R. and Mary West-wood, and where, and what were their occupations; the seventh, which asked' if she knew a man named George W. Bowman in July, 1887, and whether he was then in Camden, ³⁰⁹ New Jersey; and the ninth which asked her who were John and Sarah McGranagan, and how long and with whom she lived in Hagerstown, were all in my opinion improperly rejected.

The fourteenth, fifteenth sixteenth and seventeenth exceptions were taken to the refusal of the following questions in rebuttal, after Bitner, Wassen and Benner had testified to her going under an alias, and to being an inmate of a house of ill fame while in Hagerstown. These questions were as follows: 14th. What is your name and did you ever go by the name of Edith Boyer in Hagerstown ? 15th. Were you while in Hagerstown, at any time the inmate of a house of ill fame ? 16th.

Did you ever have sexual intercouse while in Hagerstown with a married man ? 17th. Did you ever have improper relations while in Hagerstown with any other man than George W. Bowman ? In my opinion these questions should all have been