#### Monroe, Admr., Appellant, *v.*Middle Atlantic Transportation Co., Inc., et al., Appellees.

(No. 21118

— Decided February 21, 1949.)

*Mr. Coleman Kiss*and *Mr. Albert H. Kiss,*for appellant.

*Messrs. McConnell, Blackmore, Cory <& Burke*and *Mr. 8. Burns Weston,*for appellees.

Hurd, J.

This is an appeal on questions of law in an action for wrongful death of plaintiff’s decedent, wherein the court at the close of plaintiff’s case grant*278ed a motion to direct a verdict and to enter judgment in favor of the defendants, on the ground that there was no common-law marriage between the plaintiff, Roy L. Monroe, and the decedent, Clara Monroe, as a matter of law.

On this appeal we are presented with a single question, namely: Was there sufficient evidence on the issue of a common-law marriage to require that issue to be submitted to the jury under proper instructions from the court?

The trial judge, in directing a verdict and entering judgment for the defendants, predicated his decision on the case of *In re Estate of Redman,*135 Ohio St., 554, 21 N. E. (2d), 659 (decided June 14, 1939). In that case the Supreme Court held that the essential elements of a common-law marriage were properly defined in the syllabus in the case of *Umbenhower*v. *Labus,*85 Ohio St., 238, 97 N. E., 832 (decided June 6, 1912), as follows:

> “An agreement of marriage *in praesenti*when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father. ’ ’

Reducing this definition to its component parts, we have four requisites: (1) An agreement of marriage *in praesenti*made by the parties competent to contract; (2) followed by cohabitation by the parties as husband and wife; (3) holding themselves out as husband and wife in the community and circle in which they move; (4) being regarded as husband and wife in the community and circle in which they move.

Since the’ decision in *In re Estate of Redman,*we have a later decision by the Supreme Court in the case *279of *Markley*v. *Hudson,*143 Ohio St., 163, 54 N. E. (2d), 304 (decided April 5, 1944), the second paragraph of the syllabus of which is as follows:

> “While such agreement to marry *in praesenti*must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

In that case, Hart, J., speaking for the court, stated at page 165:

> “In the trial court, the following interrogatory, among others, was submitted to the jury: ‘Did William T. Markley and Eleanor Hudson Markley enter into a mutual contract of present marriage accompanied and follbAved by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they lived?’

> “This interrogatory was answered in the affirmative. It follows, of course, that if there was probative evidence in the record to sustain this verdict of the jury, the Court of Appeals erred in reversing the judgment of the Probate Court and in rendering final judgment for the plaintiffs.” See, also, obiter at page 167.1

The Supreme Court in the *Markley case*further *held that the weight of the evidence is for the jury to determine,*citing *Bates*v. *State,*9 C. C. (N. S.), 273, 19 C. D., 189, affirmed, *State*v. *Bates,*77 Ohio St., 622, 84 N. E., 1132.

*280We have examined the record in the instant case carefully and have reached the conclusion that the evidence establishes all the elements necessary to support a common-law marriage in Ohio, as set forth in the earlier cases which we have cited and quoted from.

There is no doubt that there was evidence of an agreement *in praesenti,*as instance the following quotation from the record:

> “Q. Tell us what was said, what Clara said and what you said. A. Clara told me she had obtained her divorce. I said, ‘well, all right, Clara, we can get married now that you have your divorce.’ Clara says, ‘well, we can’t get a license in Painesville. It might be embarrassing or it will be embarrassing because we lived together as man and wife for some time.’ I said, ‘Clara, we can actually get married without getting a license.’ I said, ‘I will take you for my wife from now on and everything that I have or ever will own will be yours as much as it is mine. ’

> “Q. What did Clara say? A. Clara says, ‘Roy, I will take you for my husband and I promise to be your wife from now on.’ I told Clara I says, ‘All right. We will start out by buying a home. We will start looking for a home so we can move out of here.’ She says, ‘That will be fine, and we will furnish it and move in the home and get out of here. ’ ’ ’

Likewise, there is no doubt that there was sufficient evidence with respect to the other essential elements, such as capacity to contract, cohabitation, publication, and the fourth element of being regarded as husband and wife in the community and circle in which they moved. In fact the evidence is very definite on all of these points.

Therefore, we hold, in accordance with the decision of the Supreme Court in the *Markley case,*that the *281question here presented was one for the jury to determine on the weight of the evidence under proper instructions of law by the trial judge-.

Therefore, it is our view that there was error prejudicial to the rights of the plaintiff, in directing a verdict for the defendants and for this reason the judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

*Judgment reversed.*

Morgan, P. J., and Skeel, J., concur.

1

 “In the judgment of this court, the Court of Appeals misinterpreted the pronouncement of this court in the *Redman case*above cited, quoted from and relied upon by the Court of Appeals. This court still adheres to the doctrine that it is essential to show an agreement between the parties *in praesenti*to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement *in praesenti*may be inferred. It is to be observed that in the *Redman case*one of the parties specifically disclaimed any intention to marry.”