# Rager v. Johnstown Traction Co.

> Superior Court of Pennsylvania · October 2, 1957 · 184 Pa. Super. 474

URL: https://www.frixlaw.com/law-library/cases/9647201

## Case

- **Full name:** Rager v. Johnstown Traction Company Et Al., Appellants
- **Court:** Superior Court of Pennsylvania
- **Decided:** October 2, 1957
- **Citations:** 184 Pa. Super. 474; 134 A.2d 918; 1957 Pa. Super. LEXIS 282
- **Precedential status:** Published
- **Opinion:** Dissent by Hirt
- **Judges:** Rhodes, P.J., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647201

## How later opinions describe it (automated extraction)

- finding evidence as to cohabitation and reputation as husband and wife for approximately 11 years until death of husband was sufficient to establish a presumption of a valid common-law marriage contract

## Opinion text

Dissenting Opinion by
Hirt, J.:
The majority opinion in this case is disturbing.
Whether a marriage contract has been established is always a mixed question of law and of fact. And here, notwithstanding the findings of basic facts in favor of the claimant, we may not ignore our duty to scrutinize the evidence to determine whether the findings are supported by substantial evidence supplying all of the legal essentials of a valid common law marriage. Baker v. Mitchell et al., 148 Pa. Superior Ct. 50 , 17 A. 2d 738 . Even in workmen’s compensation cases there must be substantial credible testimony sufficient to satisfy a reasonable mind as adequate proof of a marriage at common law. Buradus v. Gen. Cement Prod. Co., 159 Pa. Superior Ct. 501, 503 , 48 A. 2d 883 ; Wilbert v. Com. Sec. Reserve Acc., 143 Pa. Superior Ct. 37, 48 , 17 A. 2d 732 . Judged by these standards the proofs in this case are patently inadequate to support the award.
The effect of the majority opinion will be to demonstrate in a death case, the way to set up a common law marriage, however spurious, sufficient in law to serve as a basis for recovery under our Workmen’s Compensation Law.
In the light of the actualities we will refer to the testimony on which the award must rest. Decedent’s statement to the woman plaintiff: “Come and live with me and make a home” was not a proposal of marriage *486 but a request merely that she become his housekeeper in exchange for her keep. And this is indicated clearly by her acceptance of the offer, in this language: “I had no place to stay, no place to go, I had to do something, so I did . . .” By her response she indicated that there was no implication of intended marriage either in the offer or her acceptance. What was offered and accepted was a place of abode, a place of residence, a place in which to live, and perhaps of refuge, with no intention.of entering into a family relationship by marriage. She also indicated this clearly when examined by the referee. To the question: “. . . by the time you went there his children were away? A. Yes. And none of them cared for him, that’s the reason we got together, he had to have a home, had to have somebody to look after him as well as I did.” Moreover, elsewhere in claimant’s testimony of her response to decedent’s offer she said that she first “told him he could go with my sister, because she didn’t live very long, she had heart trouble. I says if anything happened to her, we would go together and make a home, so we did so.” If the intention of the claimant and the decedent was anything more than to create the relationship of man and housekeeper the claimant would not have suggested her sister as a substitute; she would have accepted a proposal of marriage forthwith.
When the referee asked whether “you and Mr. Eager had any understanding or agreement of any kind before you went to live with him” she replied: “Sure. To be husband and wife, that’s the way we made it out, as long as he lived and as long as I lived. Everything went on Mr. and Mrs. E. II. Eager.” The majority opinion makes much of this testimony. At best however, this is the statement of a conelusiozz, wholly lackizig izi words essezztial to the creatiozi of a common *487 law contract. In similar situations Hantz v. Sealy, 6 Binney 405, 408, is invariably referred to as a leading case containing principles which have been controlling down to the present day. In that case the woman believed herself married, but the marriage was void because the man had a wife living at the time. Subsequently after Sealy’s legal wife divorced him, a lawyer advised the two to celebrate a marriage. Acting upon the suggestion, Sealy said to the ivoman: “I take you for my wife” and on being told that if she would say the same thing the marriage would be accomplished, answered: “To be sure he is my husband good enough”. They continued to live together, as husband and wife, in the belief, up to the death of Sealy, that they were married. In the action before the lower court in that case the woman as “Mary Sealy” sought to recover the amount of personal property bequeathed to her by the will of “Henry Sealy, her late husband”. As to the asserted common law marriage on the strength of the above testimony, Mr. Chief Justice Tilghman said: “Now these words of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage . . . what was done toas too slight and too equivocal to establish a marriage.” (Emphasis added). The Rants case, in my view was more favorable, in material respects to recovery than the present action; yet the holding of the Supreme Court, refusing to construe the above language of the woman as creating a common law marriage contract, has been followed many times and cited with approval as late as Pierce v. Pierce. 355 Pa. 175 , 49 A. 2d 346 .
Murdock’s Estate, 92 Pa. Superior Ct. 275 is another leading case most frequently cited along with the Rants case, as a landmark on the phase of the law with which we are concerned. Both parties have cited *488 it. In that case the alleged widow, in claiming a share of the estate of Murdock, testified that a marriage contract had been entered into by her with the decedent in the following manner: “He said ‘will you be good to me?’ I said, ‘Yes, I will do everything that a wife is supposed to do.’ Well, we just decided then to say we were married and let it go at that.” There was evidence of cohabitation and reputation over a period of years before Murdock’s death. The holding of our then Judge Keller was that in the absence of verba de praesenti there was no marriage contract and claimant was denied recovery.
It is not of real importance that in her claim petition appellee gave “1945” as the date of her alleged marriage with decedent, in the light of the fact that she went to live with Eager in 1942. But the following excerpts from her cross-examination cannot be ignored: “Q. You stated when you first went to live with Ira Eager in 1941 or 1942, he said to you, ‘Come and live with me and make a home.’ Is that right? A. Yes. Q. Now is that the only statement that was made at that time about you and he living together? A. Yes. Q. Do you remember telling [a] Mr. Eickert that there was no ceremony or oral agreement between you and Ira Eager? A. Yes, it was, I told him that, because my husband always said, ‘Between the eyes of God we are husband and wife.’ Q. You never had any agreement that you would be married? A. No. I thought that was enough. He was willing to make a home for me, I was willing to go with him. I think that ought to explain enough. Q. Well, in other words then, he needed a home, and you needed a home, and the two of you started to live together? A. Yes. Q. And the only agreement you ever made was when you started, he said, ‘Come and live with me and make a home,’ is that right? A. Yes.” True, claimant apparently is *489 not of the highest intelligence. But the referee protected her interests and properly saw to it that her case was presented in the best possible light. Her answers in chief were to his leading questions, and counsel’s cross-examination of her was considerate and within proper bounds. If a marriage contract had been entered into in words of the present she would have remembered them and certainly defendant’s cross-examination called for testimony of the words of the contract, if contract there was.
A common law “marriage may be established by proof of reputation and cohabitation, declarations and conduct of the parties and such other circumstances as usually accompany the marriage relation” but in general, such evidence may be accepted as presumptive proof only where direct evidence of what the parties said in malcing the contract is not available. Graig’s Estate, 273 Pa. 530, 533 , 117 A. 221 ; Nikitka’s Estate, 346 Pa. 63 , 29 A. 2d 521 . The rule which permits the finding of a marriage duly entered into based upon reputation and cohabitation alone is one of necessity to be applied only when other proof is not available. McGrath’s Estate, 319 Pa. 309 , 179 A. 599 . Marriage is a civil contract which does not require a particular form of solemnization by church or by State, to make it valid. But in a ceremonial marriage words, in the phrase “I do”, invariably insisted upon from both parties in response to direct questions of the officiating clergyman or civil officer, are essential to constitute a marriage contract. And ivords are equally if not more essential to the creation of a marriage at common law; “as a contract it must be evidenced by words in the present tense uttered with a view to establish the relation of husband and wife . . .”: Baker v. Mitchell, supra. (Emphasis added). All of the authorities are to the same effect in adhering to the above familiar rule.
*490 Cohabitation and reputation are not marriage and a presumption of marriage from them will wholly disappear in face of proof that no marriage in fact had taken place. Since evidence of the precise form of the alleged contract was available in the testimony of this claimant, the referee was bound to call her. Nilcitlca’s Estate, supra, Caddy v. Johnstown Firemen’s R. Asso 129 Pa. Superior Ct. 493 , 196 A. 590 . Claimant’s testimony is not strengthened by the circumstances: Rager had previously been married and there is no evidence that the first marriage ivas other than ceremonial. The claimant and Rager lived together in Cambria County and in the City of Johnstown where at all times a clergyman or civil officer could be quickly and easily reached. There was no “exigency” indicating a common law marriage as the appropriate form of nuptial contract under the circumstances. (Cf. Buradus v. Gen. Gement Prod,. Co., p. 504, supra). And Rager’s statement to claimant: “Between the eyes of God we are husband and wife” is at least equivocal and raises the question whether it refers to a valid marriage entered into by them (in which event it was unnecessary) or was made for the purpose of allaying claimant’s conscience in acquiescing in a meretricious relationship. Since claimant’s testimony indicated that there was no contract of marriage, the admitted cohabitation and reputation has no probative bearing in this case. In other words the controlling principle of law— conceded by the majority but ignored in its conclusion —is that a common law marriage cannot be proved by cohabitation and reputation where claimant’s own testimony shows that no words of present assent were uttered with the intention of creating a common law marriage.
The importance of the question here is not merely whether compensation shall be paid to the woman in *491 this particular case. The implications of the majority opinion, if the law, will be to let down the bars for the future, and to require the acceptance of a lower degree of proof of marriage at common law than will still be required in every other form of marriage contract. The proofs essential to establish a common law marriage are the same regardless of the nature of the proceeding, or the tribunal in which the issue is tried. Bearing upon the quality of the requisite proofs our Supreme Court in Staxiffer Estate, 372 Pa. 537, 540 , 94 A. 2d 726 , quoted with approval the following, from Buradus v. Gen. Cement Prod. Co., 159 Pa. Superior Ct. 501 , 48 A. 2d 883 : “There has been a growing judicial impatience of the invitation to perjury in cases depending for recovery on marriage at common laAV and a progressive change in judicial vieAV requiring higher degrees of proof where such marriages are asserted.” (Italics supplied). And also this language of President Judge Keller in Baker v. Mitchell, supra : “The law of Pennsylvania recognizes common law marriages. But they are a fruitful source of perjury and fraud, and, in consequence, they are to be tolerated, not encouraged; the professed contract should be examined Avith great scrutiny, and it should plainly appear that there Avas an actual agreement entered into, then and there, to form the legal relation of husband and Avife: Stevenson’s Est., [ 272 Pa. 291 ], pp. 296 and 301”.
The inferences, from all of the testimony, most favorable to claimant do not prove a marriage in this case. With due respect for-the vieAvs of my colleagues I feel obliged to lodge this dissent.
Rhodes, P. J., and Gunther, J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647201. Public record. Not legal advice.