Pickens v. O'Hara , 120 W. Va. 751 ( 1938 )

It seems to me that there is an essential incongruity between the construction heretofore placed by this Court upon one statutory provision and the plain language of another, which necessarily throws the evidence in cases of this nature into so much confusion that the unavoidable outcome in contested causes should be to abide by the decision of the fact-finding tribunal. I refer to Code, 42-1-7, providing that the issue of marriages deemed null shall yet be legitimate, which this Court has held should be liberally construed and to be applicable to the issue of a common-law marriage (Kester v. Kester, 106 W. Va. 615,146 S.E. 625; Fout v. Hanlin, 113 W. Va. 752,169 S.E. 743), and Code, 61-8-4, prescribing a fine of fifty dollars and, subject to the court's discretion, six months imprisonment, and for a repetition of the offense, not less than six nor more than twelve months imprisonment. This Court has construed the first section as including common-law marriages among those deemed null, the offspring of which is to be deemed legitimate, and also has held that those living together as man and wife without a ceremonial marriage were unlawfully cohabitating.

It seems perfectly plain that, based on this construction, Code, 42-1-7, was enacted solely for the benefit of the issue, and its liberal construction should be with the end in mind of accomplishing that purpose. I do not see how the principals can be charged with the duty of consistent conduct under this Court's construction of Code, 42-1-7, and the plain meaning of Code, 61-8-4.

The trial judge, in his written opinion, stressed the fact that the plaintiff's failure to establish a specific verbal contract of marriage was due to the inadmissibility of Icie's testimony. This Court has held it admissible. It was the only testimony directly probative of this question. The remainder of the proof showed circumstances which inferentially either refuted or corroborated Icie's statements as to the specific contract of marriage. As I have already said, the inconsistency of the inferences to be drawn from the circumstances shown seems to me to be fully accounted for by the fact that under the law in West Virginia persons guilty of the offense of unlawful cohabitation may nevertheless produce legitimate issue. To my mind, this fact prevents Icie's testimony from being plainly unbelievable, and the painstaking length of the majority opinion demonstrates the detailed consideration of the evidence involved in reaching the opposite conclusion.

The intervening ceremonial marriage of Arnold was nullified by the decree of a court of competent jurisdiction. To my mind, that marriage was not, under the circumstances, a determinative factor any more than was Arnold's relationship with Icie's mother. I think that Arnold's moral character, Icie's youth and inexperience at the time she stated the specific contract of marriage was entered into, combined with the inconsistency of the prescribed rules of conduct, constitute a typical instance in which the case should be remanded for the further consideration of a fact-finding tribunal.