I respectfully dissent because an instructed verdict was proper on the element of whether the plaintiff, Ollie B. Collora, and Joe M. Collora agreed to be married. The "rule of permissible skepticism" relied upon by the majority is not a rule of mandatory application.
The general elements of a common law marriage are: 1) a present agreement to be husband and wife; 2) living together as husband and wife; and 3) a holding of each other out to the public as husband and wife. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.Sup. 1963). The only element that is at all questionable in the case before us is the "present agreement" element. As stated by the majority in their original opinion, the testimony of the plaintiff concerning the "present agreement" was admitted to be direct, positive and uncontradicted. However, the majority would now hold that this testimony of Ollie Collora is unreliable because of the credibility of the plaintiff and her testimony should be tested by a jury determination.
The general rule that evidence given by an interested witness, even though uncontradicted, presents a jury issue, is also subject to a well-known exception, aptly stated by the Supreme Court in Gevinson v. Manhattan Construction Company of Oklahoma, 449 S.W.2d 458, 467 (Tex.Sup. 1969). On the other hand, the Court reasoned:
"conclusive effect may be given to the testimony of an interested witness provided the testimony is clear, direct and positive and there are no circumstances tending to discredit or impeach the same."
The Supreme Court also recognized this exception:
"when the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so." Gevinson, supra at 467.
The testimony of an interested party or witness is not wholly without probative force. An instructed verdict that is based thereon favorable to the party with whom the witness is identified is proper when the testimony pertains to matters reasonably capable of exact statement; is clear, direct and positive; is internally devoid of inconsistencies and contradictions; and is uncontradicted either by the testimony of other witnesses or by circumstances. In other words, when there is nothing to cause any reasonable suspicion as to its truth it may be given conclusive effect. "Particularly is this rule applicable when there is some corroboration, *Page 313 either by another witness or by surrounding circumstances; but, of course, when there exists corroboration we are no longer dealing with an issue raised solely by the testimony of an interested witness." McDonald Texas Civil Practice, Jury Trial General Sec. 11.28.6 pp. 247-248 (1965).
Here the conclusive testimony of the witnesses as to the second and third elements of a common law marriage tended to corroborate the plaintiff's testimony concerning the present agreement to be married. In addition, the defendant's attorney did not even attempt to cross-examine the plaintiff. Furthermore, there was no cross-examination of the other non-interested witnesses who testified directly, positively and unequivocably concerning the other essential elements of the common law marriage.
Although the defendant did not have the deceased husband's testimony, the defendant's attorney did have available for use the time honored method for testing a witness's credibility, and that was by cross-examination of the plaintiff wife's testimony.
The cases cited by the majority which establish the general rule are summary judgment cases which do not test the credibility of the witnesses before a trial court in the same manner as live witnesses. In Lewisville State Bank v. Blanton,525 S.W.2d 696 (Tex.Sup. 1975), a case the majority termed as controlling, the Supreme Court noted that the only summary judgment proof of the issue in question was an affidavit of an interested witness stating facts of which the defendants had no knowledge or ready means of confirmation and, therefore, the Court concluded the affidavit alone was insufficient to conclusively establish the facts necessary to support the summary judgment. This is not a summary judgment case and, in addition, there are other circumstances substantiating the plaintiff's testimony.
The majority states that James T. Taylor Son, Inc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (1960) is also controlling in the disposition of this case. In the later case of Gevinson, cited above, the Supreme Court, by the following language clearly shows that the rule in Taylor does not carry the mandatory import suggested by the majority opinion. Our highest court said:
"On the other hand the basis for recognizing an exception (to the interested witness rule) is weakened somewhat when the testimony is such that it could not readily be contradicted if untrue. See James T. Taylor Son, Inc. v. Arlington Ind. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371; " Gevinson, supra at 467. (emphasis added).
It should be emphasized that the Supreme Court did not state that the basis for recognizing the above mentioned exception to the interested witness rule is precluded as a matter of law if the testimony of the interested witness might not be readily contradicted. I can only conclude that the circumstances in each case must be carefully considered.
The circumstances surrounding the plaintiff and her deceased husband living together prior to the ceremonial confirmation of their alleged common law marriage, would not comport with human experience had it not been true that they were living together pursuant to a "present agreement" to be married. There were religious difficulties involved in consummating the marriage ceremonially because plaintiff wife, Ollie, was a Protestant, and the husband, Joe, was a Catholic. In addition, plaintiff and Joe Collora were living together as husband and wife in the home of his mother, a "devout Catholic". During this same time the conclusive evidence from disinterested witnesses established that they held themselves out to the community to be husband and wife. How could it be said that absent the unimpeachable "present agreement" which the wife testified to under oath, Joe and Ollie would have exhibited the publicly viewed marriage relationship. This circumstantial evidence established conclusively all three elements of the common law marriage. When such corroboration exists, we are no longer dealing with an issue raised solely by the testimony of an interested witness. See McDonald, supra. *Page 314
It is interesting to me that in a case very similar to the facts in this very case the Commission of Appeals would have also approved the instructed verdict of the trial court. They said:
"Proof that a couple lived together under the same name, introducing each other as husband and wife, respectively, recognizing their children, and the many other respects tending to show their marital status, is sufficient to prove a marriage. It is not necessary in addition to offer evidence of the statutory celebration, or of the actual agreement of the parties to be husband and wife. These essential facts are embraced in the marriage which is thus proved by circumstances." Consolidated Underwriters v. Kelly, 15 S.W.2d 229, 230 (Comm'n App. 1929, judgmt. adopted).
The general rule is that a directed verdict for the plaintiff should be granted where reasonable minds could draw only one inference from the evidence. 56 Tex.Jur.2d, Trial § 206 (1964); 3 McDonald, Texas Practice § 11.28.1 (1965). The three elements required to constitute a common law marriage can be established by circumstantial as well as direct evidence. I must conclude that the overwhelming evidence in this case gave conclusive effect to the plaintiff's testimony so that reasonable minds could not have differed as to the truth that the "present agreement" did in fact exist.
I would sever the action brought by the intervenors from that brought by the plaintiff; affirm that portion of the judgment which is favorable to the plaintiff; and reverse and remand for a new trial that portion of the judgment which is favorable to the intervenors.