Opinion
March 28, 1951.
July 19, 1951.
Husband and wife — Marriage — Common law marriage — Intention to effect present marriage — Contract — Cohabitation and reputation — Evidence — Preference for other form of ceremony.
1. A common law marriage is effected by agreement of the parties without the benefit of the formality of a church ceremony, an officiating officer, and without license.
2. Essential prerequisites of a common law marriage are mutual consent and intention to effect a present marriage as distinguished from an agreement to effect a marriage at some future time.
3. A common law marriage may be established by (1) proof of contract itself and (2) proof of cohabitation and reputation from which the fact of the contract may be inferred.
4. It is the fact of the contract itself which is the proof of the marriage; proof of cohabitation and reputation as husband and wife does not establish the marriage, but is evidence from which the fact of a marriage contract may be presumed or inferred.
5. Where a litigant does not rest a case upon proof of cohabitation and reputation but offers evidence of the marriage contract itself, the result must depend upon the sufficiency of the latter evidence.
6. Where there is proof of a valid marriage contract, evidence of cohabitation and reputation is proper corroboration of that fact.
7. Where the parties by contract indicating an intention to presently become man and wife validly enter into a common law marriage, it is not affected by the fact that one of the parties thereto preferred some other form of ceremony.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 12, Oct. T., 1951, from judgment of Court of Common Pleas of Schuylkill County, March T., 1950, No. 253, in case of Louise Ksionska v. The Philadelphia Reading Coal and Iron Company, State Workmen's Insurance Fund and Commonwealth of Pennsylvania. Judgment affirmed.
Appeal by State Workmen's Insurance Fund and Commonwealth from award by Workmen's Compensation Board under Pennsylvania Occupational Disease Act.
Appeal dismissed and judgment entered for claimant, opinion by STAUDENMEIER, J. State Workmen's Insurance Fund and Commonwealth appealed.
C.A. Whitehouse, Assistant Counsel, with him S.H. Torchia, Assistant Counsel, Ralph H. Behney, Counsel, and Charles J. Margiotti, Attorney General, for appellants.
Henry Houck, for appellee.
Argued March 28, 1951.
In this workmen's compensation case the sole question involved is whether claimant was the common law wife of decedent, Andrew Ksionska, who died on April 15, 1947, from anthraco-silicosis. The compensation authorities concluded that a valid common law marriage was proven and awarded compensation to the widow and a minor child of a former marriage who was dependent upon decedent for support. On appeal to the court below, the award of compensation was affirmed. The employer and the State Workmen's Insurance Fund have appealed.
Whether a valid common-law marriage was established depends upon the following testimony of claimant: "Q. After you obtained this marriage license, what did you and Andrew do? A. Live together! That is all. Q. Before you lived together did you and he say anything to each other? A. Nothing, Just he say like `I am wife' and `he husband.' . . . Q. What did you say? A. `I am wife' and `He husband. . . . Q. He said `you were his wife and he was your husband'? A. Yes. . . . Q. Did you agree to that? A. Yes." In addition to the foregoing testimony, there was corroborative testimony that decedent and claimant were known in the community as man and wife and lived together continuously since August, 1936; that decedent had listed claimant and the minor child for income tax exemptions and certified that he was married.
A common law marriage, admittedly valid in Pennsylvania, is one effected by agreement of the parties without the benefit of the formality of a church ceremony, an officiating officer, and without license. Essential prerequisites are mutual consent and intention to effect a present marriage, as distinguished from an agreement to effect a marriage at some future time. That mutual intention must be expressed per verba de praesenti and not per verba de futuro.
A common law marriage may be established by (1) proof of the contract itself; and (2) proof of cohabitation and reputation from which the fact of the contract may be inferred: Pierce v. Pierce, 355 Pa. 175, 179, 49 A.2d 346; Nikitka's Estate, 346 Pa. 63, 29 A.2d 521; McGrath's Estate, 319 Pa. 309, 315, 179 A. 599; Craig's Estate, 273 Pa. 530, 533, 117 A. 221, 222. It is the fact of the contract itself which is the proof of the marriage. Proof of cohabitation and reputation as husband and wife does not establish the marriage, but is evidence from which the fact of a marriage contract may be presumed or inferred: Grimm's Estate, 131 Pa. 199, 201, 18 A. 1061; Yardley's Estate, 75 Pa. 207; Pierce v. Pierce, supra, 179. Such presumption or inference, however, may always be rebutted and will wholly disappear in the face of proof that no marriage in fact had been celebrated: Nikitka's Estate, supra; Appeal of Reading Fire Ins. Trust Co., 113 Pa. 204, 6 A. 60.
If a litigant does not rest a case upon proof of cohabitation and reputation but offers evidence of the marriage contract itself, the result must depend upon the sufficiency of the latter evidence: Pierce v. Pierce, supra, 179; Fitzpatrick v. Miller, 129 Pa. Super. 324, 327, 196 A. 83, 85; Murdock's Estate, 92 Pa. Super. 275, 277. Evidence of cohabitation and reputation as man and wife are of no avail if the asserted contract does not meet the standards required by law: Pierce v. Pierce, supra; Bisbing's Estate, 266 Pa. 529, 531, 109 A. 670; Fitzpatrick v. Miller, supra; Murdock's Estate, supra.
Mr. Justice PATTERSON, speaking for the Court in Nikitka's Estate, supra, said (p. 65) : ". . . it has been held over and over again that where the claimant herself proves that no valid contract was actually entered into, evidence as to cohabitation and reputation is worthless". If, however, there is proof of a valid marriage contract, evidence of cohabitation and reputation is proper corroboration of that fact, — corroboration in the sense that the parties had, relying upon their agreement, lived together as husband and wife and were so known and recognized in the communities in which they lived.
Appellants contend that the claimant's testimony that she preferred to be married in church, and that the parties obtained a marriage license, clearly establishes that no valid common law marriage was effected. There is no merit to this complaint for if the common law contract complied with the requirement as to being per verba de praesenti, a preference for some other form of a ceremony cannot affect a common law ceremony validly performed: Cf. Goldman's Estate, 109 Pa. Super. 388, 167 A. 244.
Claimant was of foreign birth, and considering her mental capacity and her obviously apparent difficulty in speaking English, we are all of one mind that the evidence establishes that the words spoken by the parties exhibited a present intention of creating the relationship of husband and wife. We conclude, therefore, that the findings of the compensation authorities are supported by competent proof and that the law thereto has been properly applied.
Judgment affirmed.