I find myself at variance with the majority of the court on the law of this case. At a former day, the court reversed and rendered the cause in favor of appellant. I agreed to that disposition of the case at the time, but on careful reconsideration I cannot escape the conviction that the court committed error. I will state the grounds of my dissent.
The action of the majority is bottomed on the idea that the evidence is insufficient to raise the issue of the existence of a common-law marriage between Mary Dowdle, appellee, and Lucius Dowdle at the time of his death in February, 1918; that the union of appellee and Lucius was in its inception illegal and the evidence failed to show a valid agreement by the parties creating the relation of husband and wife, entered into after, and with a knowledge of, the removal of the impediment to their marriage, that is, after Lucius was divorced from Callie, his first wife; that their cohabitation was meretricious and not a continuance of an agreement of marriage, and therefore the court below should have peremptorily instructed a verdict for appellant.
The material facts of the case may be gleaned from the opinions of Mr. VAUGHAN, Associate Justice, supplemented by the following:
Nellie Griffin, a daughter-in-law of appellee, testified that in the fall of 1915 she resided at Ferris, Tex.; that Lucius Dowdle came to her house during the month of December of that year and remained there, picking cotton, and at that time said he and Mary were married; that she wrote letters for him, addressed to appellee as "Mary Dowdle," signed, from her "husband, Lucius Dowdle," in which he sent money to Mary; that Lucius came to her house again in the fall of 1917, and at that time she wrote letters for him to Mary the same as she did in the fall of 1915, in which money was sent as before. Witness testified that Lucius and Mary lived together, were out in company together, acted like man and wife; that Lucius introduced Mary as his wife, and heard him tell his friends that she was his wife. *Page 127 When witness returned to Dallas after being told in December, 1915, by Lucius that he and Mary were married, she congratulated Aunt Mary on the fact of her marriage, and Aunt Mary also said they were married.
J. S. Wade, son-in-law of appellee, testified that deceased told him about November, 1915, that he and appellee were married; that he intended to buy a home and take care of Mary as man and wife ought to do. He referred to her as his wife, looked after her, bought groceries, paid house rent, and such like. Witness testified, further, that he read the letters from deceased, written to appellee by Nellie Griffin, in which money was sent, and that he answered the letters for appellee. The letters received by Mary were signed, "Lucius Dowdle," addressed to his wife, "Mary Dowdle."
Flora McDade, daughter of appellee, testified that deceased came to her mother's house the first part of the year 1915; that he told witness in December, 1915, that he and her mother were married. Witness testified that they lived together in 1915, 1916, 1917, and 1918.
John Thomas, deacon of the church to which Lucius and Mary belonged, testified that Mary's name was put on the church books, "Mary Dowdle," but witness did not know when it was thus entered; heard Lucius introduce her as Mary Dowdle; white people for whom Mary washed and ironed called her by that name. There arose in the church a squabble about Lucius and Mary living together, and the matter was investigated. In answer to the question that arose, Lucius stated that Mary was his lawful wife, and Mary also said that they were married and had been three or four years. The matter was then dropped.
In regard to the divorce proceedings between Callie Dowdle, first wife of deceased, and the knowledge of appellee and deceased with reference thereto, the following evidence is pertinent: The court proceedings in evidence show that Callie Dowdle was granted a divorce from Lucius Dowdle by the district court of Bexar county, Tex.; that the suit was filed October 13, 1915, and on November 22, 1915, a waiver of service, properly executed and signed by Lucius, was filed in said cause, and, on same day, the case was tried and divorce granted.
Appellee testified:
"* * * Lucius Dowdle did not say he had divorced any other wife — she had wrote to him for a divorce. * * * We were going right ahead after * * * he signed the divorce because he said she (Callie) was going to get married to that preacher. * * * He got a letter. I don't know what time it was, but in the spring, along after Christmas. The letter stated, `Just want a divorce.' Never paid any attention to it. He said he had a letter from his wife and she wanted a divorce. I guess he gave her the divorce. I never knew her. I think it was after the time he showed me this letter that we agreed to live together. I have forgotten. I had never discussed his wife with him up to the time he got the letter. I didn't know he had a living wife until he got the letter. Up to that time we were going along, talking. I think we had made the agreement to marry at that time, as near as I can remember. * * * We went ahead as soon as he showed me the letter and made a contract. * * * I don't know anything about whether he had gotten a divorce from his wife or not when we made this contract. I don't know whether he got a divorce before his death. I didn't try to find out. I never went to San Antonio; he went."
My interpretation of this evidence is that the relation of these negroes in its beginning was illegal, because Lucius was married to another woman and could not legally marry appellee. Their relation may also have been meretricious and not matrimonial in intent, yet it reasonably appears from the evidence that, either at the beginning, or soon thereafter, Lucius and Mary agreed to live together as husband and wife and thereafter recognized and held each other out as such and were thus recognized by relatives, friends, and the church of which they were members; that this relation continued, constant and unequivocal, without hiatus, from its beginning in 1915 to the death of Lucius in February, 1918.
After Lucius was divorced from his first wife in November, 1915, the impediment to the legal marriage between him and appellee was removed. The parties were then competent to consummate a legal marriage, and it is not, in my judgment, a controlling fact that a formal marriage agreement between the parties was not shown to have been entered into after the impediment was removed, nor do I believe it can be said, as a matter of law, that the cohabitation of the parties under the circumstances, although in ignorance of the divorce, was fatal to the existence of a valid common-law marriage.
The right to enter the marriage relation without license or ceremony, as at common law, is recognized in this state. Consent, and a living together of the parties in the relation of husband and wife, will, in the absence of a legal impediment, consummate marriage.
On the first appeal of this case, judgment in favor of the guaranty company, rendered on an instructed verdict, was affirmed by this court (Dowdle v. U.S. Fidelity Guaranty Co. [Tex. Civ. App.] 242 S.W. 771), but was reversed and the cause remanded by the Supreme Court adopting the report of the Commission of Appeals (Dowdle v. U.S. Fidelity Guaranty Co. [Com. App.] 255 S.W. 388).
The evidence bearing on the marriage relation before the court on the former appeal was not materially different from the facts *Page 128 now under consideration. The Commission of Appeals, in recommending that the case be remanded for a new trial, among other things said:
"In our opinion the evidence in this case raises an issue of fact as to whether, at the time of the death of the deceased, plaintiff in error was his common-law wife, and should this case be again tried before a jury on similar facts this issue should be submitted." 255 S.W. 389.
Although the jury may have believed that the relation of these negroes in its origin was illegal, in that Lucius Dowdle then had a living wife, or they may have believed that their relation was consciously meretricious on the part of both, yet, in my opinion, they were authorized from the facts and circumstances to find that after the impediment to their marriage was removed by the divorce decree, they agreed to become husband and wife or that they ratified a former ineffectual agreement entered into for that purpose. Their living together consistently, their treatment of each other, the holding out of each other as husband and wife, the fact that they were thus regarded by their relatives and friends, are facts entirely consistent with and support the idea of an existing common-law marriage.
The courts of the country are by no means harmonious on this subject. Decisions can be found that support the rule applied by the majority, but, in my opinion, the more liberal and, as I respectfully submit, the more reasonable rule is supported by decisions from our own, as well as by the best considered cases from other courts.
In the very early case of Yates v. Houston, 3 Tex. 433, the question presented was whether a relation of this kind, illicit in its origin, was shown to have been changed to a matrimonial status. The court said, among other things:
"But admitting that their original intercourse was illicit with the knowledge of both parties, it would be urging the presumption to an unreasonable extent, to suppose that the unlawful character of the connection was unsusceptible of change, and that when all legal disabilities had ceased to operate, they would voluntarily decline all the honors, advantages and rights of the matrimony, and prefer an association disgraceful to both parties." 3 Tex. 450.
In the case of Edelstein v. Brown (Tex.Civ.App.) 95 S.W. 1126, the relation of the parties in its beginning was meretricious. In reviewing that case, this court said:
"Notwithstanding the intercourse between appellant and the mother of the appellees prior to her divorce was illicit, yet the evidence was sufficient to justify the jury in finding that they, immediately upon the granting of the divorce, repented of their sinful course and agreed to become husband and wife, and were so held out each by the other, and were so regarded by their neighbors and friends, and in law were husband and wife."
Numerous authorities were cited. This case was affirmed by the Supreme Court in 100 Tex. 404, 100 S.W. 129.
The doctrine of these cases finds abundant support: Bounds v. Foster,36 Tex. 68; U.S. v. Hays, 20 F. 710; Davis v. Whitlock, 90 S.C. 233,73 S.E. 171, Ann.Cas. 1913d 538, and note, pages 544-548; Becker v. Becker, 153 Wis. 226, 140 N.W. 1082, L.R.A. 1915E, 72-87; People v. Shaw, 259 Ill. 544, 102 N.E. 1031, L.R.A. 1915E, 91-108; 18 R.C.L. § 46, p. 421.
The evidence relating to the divorce decree and the knowledge of appellee and deceased, in regard to the divorce, has heretofore been set out. The majority opinion on rehearing stresses the idea that, although the evidence in the record is sufficient to show that Lucius and Mary lived and cohabited as husband and wife, and that he treated her as a man would his wife, yet this would not evidence the existence of the marriage relation between them unless it was shown that they knew the divorce had removed the impediment to their marriage. In other words although the divorce decree had in fact removed the only impediment to a legal marriage between them, that their living together thereafter as husband and wife would not constitute marriage unless they knew the impediment had been in fact removed.
In my opinion, this rule is too rigid and runs counter to a sound public policy, in this: We are dealing with the marital relation, which, while based upon the assent of parties, is a social status in which society at large is vitally concerned. This status is imposed wherever the parties agree to be married, as evidenced by license and ceremony, or, in the absence of license and ceremony, where their conduct and repute are matrimonial, consent may, and should be, presumed. Society confers certain rights, privileges, and exemptions on married persons that are withheld from persons living in a state of celibacy, and, conversely, obligations, duties, and responsibilities are imposed on them from which the celibates escape. The consequences that flow from the marriage relation lie at the foundation of civil government, and are of such fundamental importance to society that the relation should not be left in doubt. Therefore, where the parties consent, as evidenced by license and ceremony, or where the conduct and repute of the parties are matrimonial, where the living together and holding out as husband and wife are unequivocal and constant, it should be presumed that the parties interchanged consent to be married.
From a review of the evidence, the jury may have concluded that Lucius and Mary knew of the removal of the impediment to their marriage. The divorce decree, itself, recites that Lucius, the defendant, signed a waiver of service in the case, therefore he *Page 129 knew such a suit had been instituted; besides he made a trip to San Antonio. Appellee in her testimony speaks of a letter that was written to Lucius by Callie, his first wife, in which she wanted a divorce. She said she guessed Lucius gave her (Callie) the divorce; did not know whether the divorce was granted or not; did not try to find out; did not go to San Antonio, but that Lucius did go.
In Manning v. Spurck, 199 Ill. 447, 65 N.E. 344, the court said:
"It is probably a safe rule to say that if parties to a marriage, in the beginning, desire and intend marriage in good faith, as a matter of fact, but an impediment exists, and the desire and intention continue after the impediment is removed, and the parties continue in the relation of husband and wife, and cohabit as such, it is sufficient proof of a marriage."
In Townsend v. Van Buskirk, 33 Misc.Rep. 287, 68 N.Y.S. 512, the court said:
"There can be no other conclusion from all the evidence in the case than that she and Townsend desired marriage, that that was their intention, and consequently `their cohabitation, thus matrimonially meant,' made `them husband and wife from the moment when the disability' on his part was removed, and it was immaterial whether he knew of that removal, * * * the fact being that it was removed, and their consent to the matrimonial relation may be inferred from their acts and conduct."
In a Nebraska case, Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995, 60 L.R.A. 605, 1 Ann.Cas. 199, the court, in reversing a judgment of the lower court which held a marriage void said:
"If the parties live together, and intend to sustain towards each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married. The marriage between the plaintiff and defendant was an attempt made in good faith to form a legal union. Both intended to live in wedlock. In the absence of an impediment to the marriage, no ceremony would have been required; the mutual consent of the parties would have been sufficient. When the impediment was removed, why may not consent be inferred from continued cohabitation?"
It will also be noted that the courts of Great Britain, from whom we inherited the common law, place the same construction upon its principles in the respect here under discussion. In 1867 the case of Campbell v. Campbell, reported in L. R. 1 H. L. 182, was before the House of Lords. The facts were that Campbell eloped to Canada with the wife of one Ludlow, where they lived together as husband and wife until after the death of Ludlow, of which fact, however, the parties were ignorant. They returned to England and, after the birth of a son, settled in Scotland, where they thereafter continued to live together as husband and wife. Thus it appears that their union in its origin was not only illegal, but flagrantly meretricious; that the legal impediment to their marriage was at some time during their cohabitation removed by the death of Ludlow, but of this they seem to have been entirely ignorant. However, from the inception of their relation to the end they held themselves out, uniformly, as man and wife. The contention was made that the presumption arising from their subsequent conduct must be referred to the original illicit relationship, and that no presumption could arise that they interchanged consent to marry after the impediment was in fact removed. Lord Westbury denied this contention in the following language:
"I should undoubtedly oppose to that (the contention mentioned above) another and, I think, a sounder rule and principle of law, to wit, that you must infer consent to have been given at the first moment when you find the parties able to enter into the contract."
In 1876 the same question was before the House of Lords in the case of De Thoren v. Attorney General, reported in L. R. 1 App.Cas. 868. In this case the parties attempted to consummate marriage, which was void because of the existence of a legal impediment; but they continued to live together as husband and wife after the removal of the impediment, of which, however, they were ignorant. It was contended that the inference of marriage was rebutted because the parties commenced their living together in pursuance of an invalid marriage, and that the consent deducible from cohabitation must relate back to their ineffectual attempt to get married. This contention was denied. It was held by the court that the inference of an interchange of matrimonial consent took place as soon as the parties were enabled by the removal of the impediment to enter into a marriage contract. Lord Chelmsford said:
"Taking the facts as they are stated in the case and applying the law to them, the Court of Sessions is of opinion that, assuming the ignorance of the parties of the invalidity of the ceremony of marriage during the whole period of their cohabitation, yet, after the removal of the impediment to their marriage and before the birth of their eldest son, they became married persons."
Under the doctrine announced in these cases, the trial court, in my opinion, was well within his duty in requiring the jury to find from the evidence whether or not there existed a common-law marriage between Lucius and Mary, and the jury, in response to the submission, having found that that relation did exist, their finding, in my judgment, was justified.
The largest fact in the case, in truth its background, without which we are unable to justly appraise the value of the evidence, is that these parties were just ordinary, *Page 130 unlettered negroes of a familiar type in this country. The courts Judicially know the degree of moral development attained by them their loose ideas of social obligations, and that they are not yet conscious of the sanctity and beauty of the marital relation as expressed by an eminent writer, who said:
"Though fools spurn Hymen's gentle powers, We who improve his golden hours, By sweet experience, know That marriage, rightly understood, Gives to the tender and the good, A Paradise below."
Nevertheless, after the beginning of their union, although in an irregular and unconventional manner, it nowhere appears that Lucius and Aunt Mary were thereafter disobedient to the obligations of the relation assumed by them.
I submit, therefore, if any presumptions are to be indulged from the evidence in this case, they should lean to innocence rather than to guilt, and should support a status of matrimony rather than a status of concubinage.
I am of the opinion that the motion of appellee for a rehearing should have been granted, and that the judgment of the trial court should have been affirmed.