Maryland Casualty Company, Appellant, v. Violet F. Bishop, Appellee, 280 F.2d 253 (5th Cir. 1960)

We do not think so. On the contrary, we think: (1) that the evidence presented a fact issue for the jury, and the verdict finds full support in the evidence; and (2) that the giving of the additional instruction was not in any respect erroneous.

Grounding his argument on the decision of the Supreme Court of Florida in the Marsicano case, Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156, appellant incorrectly, we think, urges upon us that the facts of this case show it to be one of an attempt to invoke the doctrine of marriage per verba de futuro cum copula, and bring it directly within the condemnation of that decision. With full recognition of the earnestness and sincerity of appellant's contention, we are constrained to disagree with this view. It is true that the Houcks did testify that, in their ignorance of the law, they did not know, indeed did not believe, that their words and conduct had created a legal marriage and that they thought that to create such a marriage a marriage ceremony was necessary. It is also true, however, that they testified that, legality aside, they considered themselves married, and, equally true, that the evidence afforded ample basis for and support to the jury's verdict, that a common law marriage existed between them.

The difficulty with appellant's argument is, we think, that it is based upon the erroneous view that because the parties, laboring under a mistake of law, thought that what they had done, and were doing, was not legally effective to make a marriage, the requisite legal intent to make it was lacking. Cf. 17 C.J.S. Contracts § 145, Mistake of Law, page 500. Further, it has been held that the crime of bigamy may be based upon a prior common law marriage, the existence of which is shown by the required measure of proof, though the defendant did not know that the common law marriage was a legal marriage so as to make the second marriage bigamous. 7 Am. Jur., "Bigamy", Sec. 11, p. 754.

It is certainly true that, from the facts testified to, the jury could have found that there was no real intent to make a common law marriage, but we think it equally true that the jury could have found as it did. The facts which stand out in the record are the length of time that the parties have resided together, the fact that they have returned to live with each other after occasions of separation brought about by arguments and quarrels, the holding out of themselves to the public as husband and wife, the filing of a joint income tax return, the fact of giving the child their name, the purchasing of insurance policies together, and the fact that they have lived together with each of their respective parents. Taken together, these certainly show an intent to be married and lend credence to their testimony that they did make an agreement to live together as husband and wife under which they considered themselves as joined in marriage.

But for some of the language in the Marsicano case, supra, we think it would not be for one moment doubted that there was sufficient credible evidence to take the case to the jury and to support the verdict, and that the court below was, and we are, without power to substitute our judgment of the facts for that of the jury. The Marsicano case was not such a case as this. There was no question of the legitimacy of a child, the appeal was not, as here, from a final judgment on the verdict of a jury holding that there was a valid common law marriage. The appeal was from a decree for temporary alimony pendente lite until further order of the court, and, as the opinion shows, the appellate court determined for the purpose of that appeal that there was no basis for the decree pendente lite.

It is interesting to note that in Lambrose v. Topham, et al., Fla., 55 So. 2d 557, 558, the Supreme Court clearly laid down the rule that, while it is true that one claiming a common law marriage has the burden of establishing a prima facie case, "It is well established in this state that the person who asserts the illegality of a marriage must assume the burden of proof of the assertion".

It is interesting to note also that in Fincher v. Fincher, Fla., 55 So. 2d 800, 801, an appeal as Marsicano's was from an interlocutory order, requiring petitioner to pay certain sums for alimony and attorney's fees pendente lite, a divided court citing the Marsicano case, reversed the order and took it upon itself to outline for the benefit of the bench and bar the procedure which should be followed when a complaint alleging a common law marriage and seeking alimony and attorney's fees pendente lite is filed and its allegations are denied by the defendant.

In Chaachou v. Chaachou, Fla., 73 So. 2d 830, an appeal from an order, as in the Marsicano and Fincher cases, with respect to alimony, suit money, and attorneys' fees pendente lite, the court, citing Lambrose v. Topham, supra, with approval, and Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789, 790, on facts no stronger than, indeed not as strong, for the claim of marriage, as those asserted here, found that a prima facie case had been made out sufficient to support the appellant's claim for alimony, etc.

A full and careful consideration of the facts of this case, in the light of the controlling principles, convinces us that the case was typically a fact case for the jury, and the denial of the motion for directed verdict was not error.

As to appellant's procedural ground, which asserts error in the giving of the supplemental charge to the jury, we find and hold that it is completely without substance. As the district judge correctly pointed out in his colloquy with counsel, the instructions were completely responsive to the jury's request and more would have been confusing and inappropriate. Nothing in what was said by him in any way departed from or was inconsistent with what he had already charged the jury, and the contention of appellant comes down simply to this, that, by not repeating all that he had said before, he had in some way withdrawn or modified it. No authority is presented in support of this conclusion, and we think that the authorities cited by appellant which are directly to the contrary represent a correct statement of the law. 89 C.J.S. Trial § 476, p. 121; Martin v. Tindell, Fla., 98 So. 2d 473, at page 477; 5B C.J.S. Appeal and Error § 1782, p. 33.

Finally, we think we cannot do better in summary of the case than to adopt this statement from appellee's brief:

"We have here two people who have livd openly together as husband and wife since May 1, 1956, and who were yet living together at the time of the trial some three and one-half years later. They have brought a child into this world and have firmly established themselves in the community as husband and wife. Regardless of how one feels about the common-law marriage relationship, the law must be given effect. James and Marion Houck have had a sordid background. They have not always conducted themselves in the manner expected of married people. On the other hand there are many, many people who have been married by the church or by civil ceremony who have conducted and demeaned themselves and regarded their marriage relationship with much less respect than that shown by the Houcks. No one will deny that the law of Florida which still embraces the common-law type of marriage is antiquated and outdated. Nevertheless, it is the law of Florida until the legislature sees fit to abolish the same. An intelligent jury composed of eleven men and one woman decided the issue favorably to the appellee. They were well informed on the issues and all of the facts touching upon the question of the intent, consent and cohabitation of the parties to the marriage."

In conclusion, while what we have heretofore said has disposed of the case on the theory upon which it was tried, we think it not inappropriate to say that, had the case been tried on the theory that under the facts the insurance was intended to, and did, cover and protect Marion Houck as the person described as spouse, the evidence would, if believed by the jury, have supported a verdict for plaintiff.

The judgment was right. It is affirmed.