Page images

home seldom thereafter. Finally, in Decem- | inating influence upon such a question as now ber, 1904, he wrote respondent a letter in confronts us. In fact, they constitute the effect expressing a desire to terminate the reason, the basis and the life of the law apengagement.

plicable in a case of this character. The most Upon the trial there was some indefinite profound philosophers join with the wisest ness in the evidence as to the seriousness of statesmen in maintaining the proposition that her condition. She admitted upon the wit- the home is the unit of the state, and that the ness stand that for about a year prior to character of a people and the stability and the time of the trial she had been sleeping welfare of the nation must largely depend out of doors on the porch at the side of the upon the healthful and wholesome influence house, in order to have the benefit of the of the home life. By reason of this, we open air; that while in Arizona she had lived find the home and the members thereof, esmost of the time in a tent, being much of specially the young and dependent, sheltered the time confined to her bed, and having by the protecting care of various statutes, night sweats and a cough, and having had all being evidences and expressions of that several "fainting spells”; that since her re- public policy which deems the home and its turn she had been free from the night sweats, inmates appropriate objects of the solicitude but still had the cough; that she had con- and care of the state. The paramount continuously followed, and was then following, sideration involved in the determination of the directions and treatment recommended this case is not that appertaining solely to by appellant and the books he had furnished the parties to this action (although as to her; that she was taking cod-liver oil and each of them it is of great importance), but practicing the “breathing exercises.” The it is as to the community, the state and to doctors who attended her at the hospital humanity in general. Here we have a man

a made an examination and found that she was and woman engaged to be married. The man at that time afflicted with pulmonary tuber- is of a family several members of which have culosis. One physician who examined her a died with pulmonary consumption. The wofew days before the trial, at the request of man is afflicted with the same disease to her attorney, testified that she at that time such an extent that it becomes necessary had the disease. In fact, it was not disputed for her to go to a distant portion of the counthat she had never recovered since the en- try to recuperate, which she does, returning gagement; but she believed herself to be with the affliction still upon her and with much improved over her condition as it was small, if any, assurances of recovery. Unwhen she started for Arizona. Her step- der these circumstances, it the marriage were father testified that their family physician to be consummated, what would be the nathad said tbat he did not deem it advisable ural consequences to be anticipated? Unfor her to get married. Appellant testified conditional promises of marriage, exchanged that his father and mother had died from this by a man and woman, imply respectively disease, and that he had for many years prac- that each is physically, morally, and legalticed "breathing exercises” for self-protection ly competent to enter the status of matritherefrom. He urged that, by reason of the mony, and capable, in so far as he or she diseased condition of respondent and of the knows or has reason to believe, of effectuattaint in himself, the proper functions of mar- ing the principal purposes of the marriage re riage could not be consummated, and that lation. One of the most important functheir marriage would be detrimental to the tions of wedlock is the procreation of chilhealth of her, himself, and any issue they dren. Offspring are the natural result, and might have, and in contravention of public ofttimes the chief purpose, of marriage. policy.

That the thought of bringing a child into the As to the question of the date of the en- world should be one of the most serious that gagement, and as to whether or not he knew can engage the mind of a human being needs of her having consumption at the time he be- but to be suggested. Born amidst the most came engaged to her, while the evidence favorable environment, there lies before every would seem to make his version reasonable, babe a life of uncertainty so great that do yet as the jury evidently reached the other worthy parent may contemplate it without a conclusion, we will accept their finding as tremor of apprehension. Thus launched upon correct. The trial court ruled upon the evi- the sea of time and eternity, what parent can dence and instructed the jury upon the theory dwell upon the birth of his child without the that the appellant was liable for a breach keenest sense of anxiety and responsibility? of the agreement if, at the time of the mak- If the child born in health and with a body of ing thereof, he knew the character of appel- vigor be a matter of deep concern to a parent, lant's ailment. Proper exceptions, in differ- what must be said of the advent of a babe ent form, questioned the correctness of this burdened with the hereditary plague of conview. The question presented to the court sumption? That pulmonary tuberculosis is Is this: Did appellant under the circumstan- both contagious and hereditary, as these terms ces have a legal right to disregard the prom- are commonly understood (although possibly ise of marriage he had given respondent? not in a strictly technical and professional In the domain of morals it is a maxim that sense), as well as infectious admits of little, if A bad promise is better broken than kept. any doubt. That a mother seriously ill with Moral considerations must have a predom- i that disease and a father with a hereditary taint thereof in his blood could bring forth a In the face of legal restrictions and require child exempt therefrom is unbelievable. For ments of this character, it is difficult to underparents thus aiflicted to bring into the world stand how a man or woman afflicted with this A child would be not only detrimental to the plague may legally insist upon the fulfillment welfare of the state and an offense to the in- of a promise of marriage, which, if consumstincts of humanity, but it would be, as mated, would endanger the health and life of against the innocent babe, a moral wrong both and blight the life of any offspring that most abhorrent. Such a child must of neces- might be born. Any person entering mar- . sity be a burden to itself and others and de- riage, knowing himself to be seriously afflictvoid of the joys and blessings that make life ed with pulmonary tuberculosis, violates the endurable. In declining to carry out his spirit, if not the exact letter, of the statutes promise of marriage, it may be presumed that enacted to prevent the spread of that disease. appellant apprehended the natural and legiti. The same is true of one who marries another mate consequences of such a union. In ad- knowing him or her to be thus afflicted. An dition to the thought of progeny, there would agreement wbich, if executed, would thwart be also that of the aggravation of the disease the beneficent purpose of such statutes, ought as to both himself and prospective wife, the not to be held binding. The principles we bemedical expert evidence showing that the lieve controlling here have been recognized intimate association of married life would and enunciated by the courts in several of tend to augment the ravages of the malady our sister states. The Supreine Court of upon each.

Appeals of Virginia, in the case of Sanders The apprehension felt by the people of this v. Coleman, 97 Va. 690, 31 S. E. 621, 47 L. state from the disease under consideration R. A. 581, made use of the following expresis evidenced by a statute enacted by the sions : :"Under the expression 'the act of Legislature in 1899, entitled: "An act to pre- God' is comprehended all misfortunes and acvent the spread of tuberculosis" etc. Laws cidents arising from inevitable necessity 1893, p. 117, c. 71. Section 5 of that statute which human prudence could not foresee or reads as follows: "It is hereby made the prevent. Hence, it is held that 'illness,' duty of every person having tuberculosis and being beyond the power of man to control or (o everyone attending such person, and of prevent, is the act of God. Story on Bailthe authorities of public and private institu- ments, 25, 511; Fish v. Chapman, 2 Ga. 349, tions, hospitals, or dispensaries, to observe 46 Am. Dec. 393; Gleason v. Va. M. R. R. and enforce the sanitary rules and regula- Co., 140 U. S. 435, 11 Sup. Ct. S39, 35 L. Ed. tions prescribed from time to time by the 458. It can no longer be doubted that, if the heards of health, of such cities and of the performance of a contract is rendered imstate for the prevention of the spread of pul- possible by the act of God alone, such fact monary tuberculosis.” Other statutes exist,

will furnish a valid excuse for its nonperhaving for their purpose the prevention of formance, and such a stipulation will be the spread of this and other contagious and understood to be an inherent part of every infectious diseases. The enforcement of cer- contract. This principle, it would

it' would seem, tain rules and the distribution of literature should apply with peculiar force to a margiving information as to the prevention and

riage contract, the performance of which, treatment of such cases is enjoined upon

owing to causes subsequently intervening, boards of health and others. Such a docu- and altogether independent of any default ment is the “Circular of Information to pre- of the party, might result in consequences vent the spread of Consumption,” which is

disastrous to the life or bealth of the parnow before us. Besides much other informa- ties, or either of them. We hold, therefore, tion and many directions, it contains the that a contract to marry is coupled with the following items: "Consumption is the most implied condition that both of the parties common and the most fatal of all diseases.

shall remain in the enjoyment of life and It is a disease of the lungs caused by a germ

health, and if the condition of the parties which is breathed into the lungs or gets in

has so changed that the marriage state to the body with food. This germ of con

would endanger the life or health of either, sumption comes only from some other person

a breach of the contract is excusable. Allen or animal that has the disease.


V. Baker, 86 N. C. 91, 40 Am. Rep. 444; consumptive should never sleep in the same

Shackleford v. Hamilton, 93 Ky. 80, 19 S. bed with another person.

* A con

W. 5, 15 L. R. A. 531, 40 Am. St. Rep. 166; sumptive mother should never nurse her

Bishop on Marriage and Divorce, $ 219. In baby; it is bad for the mother and dangerous

the case at bar, the evidence, as to which in for the baby. A consumptive should not

our opinion there is no real conflict, shows cook or prepare food for others.

that there was a predisposition, in the de When a consumptive moves to another house, fendant's family, to physical trouble of the notify the health authorities by 'phone or kind that had developed with him; that his card, so that they can see that the old home father had died with a similar disease, and a is properly disinfected according to law. Do brother with urinary trouble; that after his not share a consumptive's bed, or use the engagement with the plaintiff, and before the personal property, including dishes, belong time fixed for the marriage, the defendant Ing to one."

i had, without fault on his part, developed

and was suffering with a grave malady, in- dence.' 1 Bishop, Mar. & Div. (6th Ed.) volving the urinary organs

* * and 322. *

It is impossible for the dethat an indulgence in sexual intercourse fendant to fulfill his contract. His disease would aggravate his disease, and likely short- renders him incapable of marriage without en his life; and that it would be, not only actual damage to the life of the woman be a wrong and injustice to the defendant, but marries by communicating to her and through also to the plaintiff for him to marry in his lier to their offspring a loatlisome discondition of health. Marriage is assumeil in ease that is now, from the testimony in the law to be made for mutual comfort. The Case, gradually destroying this unfortunate condition of the defendant precludes any man.

Yo greater crime in law or hope of mutual comfort from cohabitation morals could have been committed by the * * Our conclusion upon the law and appellant than a performance of his agreethe evidence is that the defendant acted ment. The purity of our social system, the throughout with good faith, and that the interest of the public in preserving sacred unhappy circumstances in which he found the marital relation, the protection of those himself justified the alleged breach of his whose existence may spring from such an contract to marry the plaintiff.” What was unholy alliance, as well as the future welfare there said becomes particularly pertinent to and happiness of the parties themselves, rethe case at bar; the evidence of the medical quire that such a construction should be girexperts here being to the effect that copula. en this class of contracts; and if there was tion would be exceedingly detrimental to one no precedent for the recognition of the dorafflicted as was respondent.

trine announced, we would not hesitate to Ipplicable in principle also is the case of make one." The same court, in a subsequent Sharkleford v. Hamilton, 93 Ky. 80, 19 S. case (Gardner v. Arnett, 50 S. W. 810, 21 W. , 15 L. R. A. 531, 40 Am. St. Rep. 166, Ky. Law Rep. 1) approved the decision and which was based upon facts about as follows: reasoning of the case just cited and, as to the Appellant prior to his engagement to respond- case before it, observed: "lle [defendant] ent had contracted syphilis, but believed at owed it to the plaintiff and society to refuse the time of his engagement that he was to enter into marriage relations with her, thoroughly and permanently cured thereof. and he had the right to abandon the contract Some time after his engagement to respond- and refuse to marry her at any time before ent the effects of this disease again manifest- their marriage was solemnized." In Ryder ed themselves in so serious a form that 1. Nyiler, 66 Vt. 159, 28 Atl. 1029, 44 Am. St. physicians said it was doubtless incurable. Rep. 833, the Supreme Court of Vermont anThereupon appellant informed respondent

respondent nulled a marriage because the wife had a that he could not miltry her. She declined venereal disease endangering the lealth of to release him from his promise, and insti- her husband and any children she might bear. tuted an action for damages. The Supreme To the saune effect, in principle, were the Court of Kentucky, in passing upon the case, decisions in Smith v. Smith, 171 Mass. 104, said: "Where the marriage contract is con- 30 X. E. 933, 41 L. R. 1. S00, 68 Am. St. Rep. summated, the parties taking each other for 410; McMahen v. Melahen, 186 Pa. 48), 40 better, for worse, for richer, for poorer, and Atl. 79.), 41 L. R. A. 802; Svenson v. Svenson, agree to cherish each other in sickness and 178 X. Y. 3. 70 X. 1. 120; and Martin v. in health, the fact that the social standing Martin, 31 W. Va. 301, 16 S. E. 120. In the of the one party or the other, cr their recun- case of Goldard v. Westcott, 32 Mich. 180, iary condition, was not as representeil, will 16 X. W. 212, the Supreme Court of Michigan afford no ground for relief; still, when there said: "While it is the policy of the law is a mere agreement to marry, there may be to encourage marriage, it is not the policy such a condition of the one party or the of the law to encourage unhappy marriages," other as to health or other bodily infirmity and the court then, with express approval, arising subsequent to the agreement as would quotes from Jr. Schouler, in 7 South. Law. authorize either party to decline to enter Rev. 63, the following: “The marriage state into the marriage relation, and to hold other- ought not to be lightly entered into. It inwise would be to place such a contract upon volves the profoundest interests of human the same footing with cases of mere personal life, transmitting its complex influences dichattels. * * The text-books establish rect to posterity, and invading the happiness the doctrine that 'without sexual intercourse of parents and near kindred. * * * From the ends of marriage, the procreation of chil- such a standpoint, we view the marriage endren and the pleasurse and enjoyments of gagement as a period of probation, so to matrimony, cannot be attained. The first speak, for both parties; their opportunity cause and reason of matrimony, says Ayliffe, for finding one another out; and if that pro‘ought to be the design of having offspring; bation results in developing incompatibility so the second ought to be the avoiding of of tastes and temperament, coldness, susfornication. And the law recognizes these picion, and incurable repugnance of one to two as its principal ends, namely, a lawful the other, though all this may impute no vice indulgence of the passions to prevent licen- to either, nor afford matter for judicial tiousness, and the procreation of children, ac- demonstration, duty requires that the match cording to the evident design of Divine Provi- be broken off.” In the case of Allen v. Baker,

87 P.-41

86 N. C. 91, 40 Am. Rep. 444, the Supreme assumed in the point, and affirmed by the Court of North Carolina spoke as follows: court, that the impediment must be of such “We cannot understand how one can be li- a nature as would be a ground of divorce able for not fulfilliug a contract, when the after marriage. We are not now dealing very performance thereof would in itself with a question of divorce. That is a subamount to a great crime, not only against ject that is regulated by statute, and has no the individual, but against society itself. necessary relation to the case in hand. We

* * It is likewise true, that whenever are considering a contract to marry-a conthe main part of an executory contract be- tract which calls for the richest good faith comes impossible of performance from any on both sides, and which neither party has cause beyond the power of the party to con- the right to enforce against the other if introl, it will be treated as having become im- capable of performing the full marital duties. possible in toto. Why should not the same A man does not contract to marry a woman principle apply to a contract, the fulfillment for the mere pleasure of paying her board of which, owing to causes subsequently inter- and washing. He expects and is entitled to vening and altogether independent of any | something in return; and if the woman with default of the party, can only be productive | whom he contracts be incapable, by reason of consequences disastrous to the parties of a natural impediment, of giving him the themselves, and such as may entail misery comfort and satisfaction to which, as a marupon others to come after them? * * * ried man, he would be entitled, then there The usual, and we may say legitimate, ob- is a failure of the moving consideration of jects sought to be attained by such agree- such contract, and no court ought to enforce ments to marry, are, the comfort of associa- it by giving damages for its breach." In tion, the consortium vitæ, as it is called in the early case of Atchison v. Baker, 2 Peake, the books; the gratification of the natural 103, Lord Kenyon said: “It would be most passions rendered lawful by the union of mischievous to compel parties to marry who the parties; and the procreation of children. could never live happily together ;” and he And if either party should thereafter become, cites Lord Mansfield as having held, in the by the act of God and without fault on his case of Foulkes v. Sellway, 3 Esp. 236, that a own part, unfit for such a relation and in- defendant was not liable in damages for capable of performing the duties incident breach of promise where the character of the thereto, then, the law will excuse a non- woman turned out to be different from what compliance with the promise—the main part he had reason to believe it, and that an inof the contract having become impossible of firmity, either bodily or mental, would excuse performance, the whole will be considered fulfillment of the marriage agreement. to be so." In Trammell v. Vaughan, 158 Mo.

It is a fundamental proposition that a con214, 59 S. W. 79, 51 L. R. A. 834, 81 Am. St. tract contravening the provisions or policy of Rep. 302, the Supreme Court of Missouri em- a public law is void or voidable. MacIntosh ployed this language: "Marriage is a con- v. Renton, 2 Wash. T. 121, 3 Pac. 830; Cannon tract, but it is not merely a civil contract, v. Cannon, 26 N. J. Eq. 316; Bowman v. for it can only be entered into in a manner Gonegal, 19 La. Ann. 328, 92 Am. Dec. 537 ; recognized by law, and can only be dissolved Bishop on Contracts (Enlarged Ed.) § 470, in a like manner. The state is the third reads: “No agreement between parties to do party to every such contract, and has a di- a thing prohibited by law, or subversive of rect interest therein. Blank v. Yohl, 112 Mo., any public interest which the law cherishes, loc. cit. 167, 20 S. W. 477, 18 L. R. A. 350; will be judicially enforced.” And at section State v. Bittick, 103 Mo. 183, 15 S. W. 323, 473, the following appears: "A contract in11 L. R. A. 587, 23 Am. St. Rep. 869. Certain vading any one of the other interests which marriages are prohibited by law because of the law cherishes, though to do what is neitheir detrimental effects upon society and

ther indictable nor prohibited by: a statute. the human species. Every contract of mar- termed a contract against public policy (or riage implies that the contracting parties sound policy), is likewise void.” 9 Cyc. p. know of no legal or physical impediment to 481, says this: "If an agreement binds the the contractual relation and its consequences.

parties or either of them, or if the considera* * * If the disease is of a temporary

tion is to do something opposed to the public character-such as was the case here and

policy of the state or nation, it is illegal and could be easily cured, the defendant is en

absolutely void, however solemnly made. If

the court should enforce such agreements it titled to postpone the marriage until he is

would employ its functions in undoing what (ured; and, if the disease is of a permanent

it was created to do. It is not easy to give character-such as was the fact in the North

a precise definition of public policy. It is Carolina, Kentucky, and Virginia cases-the

perhaps correct to say that public policy is defendant is not only entitled to refuse to

that principle of law which holds that no (arry out the contract, but it is his duty to

person can lawfully do that which has a do so." In the case of Gring v. Lerch, 112 tendency to be injurious to the public or Pa. 216, 3 Atl. 841, 56 Am. Rep. 314, the Su- against the public good, which may be desigpreme Court of Pennsylvania spoke as fol- nated, as it has sometimes been, the pollows: “It is a mistake to suppose, as was icy of the law or public policy in relation to the administration of the law. Where a con- was the privilege of either party to withdraw tract belongs to this class, it will be declared therefrom. Rule 126 of Greenhood on Public void, although in the particular instance no Policy reads as follows: "No one can estop injury to the public may have resulted. In himself from proving facts which will show other words its validity is determined by its a contract to be opposed to public policy." general tendency at the time it is made, and It having been the privilege and, as we beif this is opposed to the interests of the public | liere, the moral and legal duty of appellant it will be invalid, even though the intent of to decline to carry out the agreement, he canthe parties was good and no injury to the not be held responsible in damages for so public would result in the particular case. doing. The following authorities bear on The test is the evil tendency of the contract some of the questions here involved. Turnand not its actual injury to the public in a bull v. Farnsworth, 1 Wash. T. 444; Standparticular instance." To the same effect, 15 ard Furniture Co. v. Van Alstine, 22 Wash. Im. & Eng. Enc. of Law (2d Ed.) p. 933. 670, 62 lit('. 145, 51 L. R. A. 889, 79 Am.

Counsel for respondent cite us to cases St. Rep. 960; Graves V. Johnson, 156 Mass. where a man, promising to marry a woman 211, 30 N. E. 818, 15 L. R. A. 834, 32 An. whom he knew to have been formerly un- St. Rep. 116; Armstrong v. Toler, 11 Wheat. chaste, was held to be bound by such promise. (U. S.) 258, 6 L. Ed. 468; Ah Doon v. Smith, Such a case and this are not analogous. 25 Or. 89, 34 Pac. 1093; Tatum v. Kelley, There the man by his promise overlooks the 25 Ark. 209, 94 Am. Dec. 717; Woodworth v. former shortcomings of the woman, and it is Bennett, 43 X. Y. 273, 3 Am. Rep. 706; Gayà matter concerning him only. She would lord v. Sorigen, 32 Vt. 110, 76 Am. Dec. 154; have the ability to, and presumably would, Ralston v. Boady, 20 Ga. 449; Mabin v. Webreform and become a good wife and worthyster, 129 Ind. 430, 28 N. E. 863, 28 Am. St. inother. This is to the advantage of society, Rep. 199; Ryder v. Ryder, 66 Vt. 158, 28 Atl. and not inconsistent with sound public policy, 1029, 44 Am. St. Rep. 833; Gulick v. Gulick, and the law should interpose no hindrance 11 N. J. Law, 13; Kantzler v. Grant, 2 Ill. thereto. But a consumptive woman is physi- App. 236; Walker v. Johnson, 6 Ind. App. cally incapable of becoming a healthful com- 600, 33 N E. 267, 34 N. E. 100; Miller v. panion or the mother of healthy issue.

Rosier, 31 Mich. 475; Sprague v. Craig, 51 not a condition that she voluntarily created Ill. 288; 4 Am. & Eng. Enc. of Law, S93, 894, or can change at will. The evils to follow and note; Wharton, Contracts, 324; Pollock, her marriage could not be confined to herself Contracts, 377; 2 Addison on Contracts; Gould and husband, but must of necessity concern & Pyle Cyclopedia Medicine & Surgery; Story and injuriously affect others. The nature on Contracts, $ 675; Anders, Practice of Mediand natural sequences of a contract of mar- cine, 269, 270-272; Beach, Modern Contract riage are such that the state is of necessity Law, 1198, 1499. a third party to, and interested in, every The judgment of the honorable superior such agreement. Its interests forbid the en- court is reversed, and the cause remanded, forcement of such a contract between parties with instructions to dismiss the action. physically incapable of making the married state beneficial to themselves or society. We MOUNT, C. J., and DUNBAR, CROW, are not disposed to take into consideration

ILADLEY, FULLERTON, and RUDKIN, JJ., any matters personal only to the appellant.

Concur. If he knew of the nature of respondent's ailinent when he agreed to marry her and agreed to make her his wife, notwithstanding the

(17 Okl. 260) same, he ought not to escape responsibility

IEBEISEN v. HATCHELL. by reason of any inconvenience affecting

(Supreme Court of Oklahoma. Sept. 7, 1906.)

7 only himself. But the interests of the com

1. APPEAL-TIME OF TAKING. munity and state step in, and, with the dic

Under section 574 of our Civil Code (Wiltates of humanity, demand that no human

son's Rev. & Ann. St. 1903, § 4772), proceedcompact shall be upheld that has for one of ings for reversing, vacating or modifying judgits principal objects the bringing into the

ment or final orders must be commenced in the

Supreme Court within one year after the rendiworld of helpless, hopeless, plague-cursed,

tion of the judgment or making of the final orinnocent babes. We can sanction the break- der which is sought to be reviewed by this court, ing of a promise and relieve from the terms unless the person entitled to such proceeding be of a deliberate agreement only when the al

under disability, as provided in said section. ternative involves results more deplorable.

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 2, Appeal and Error, $8 1879-1882.] Had these parties married, it is inconceivable

2. SAME-JURISDICTION AFTER ONE YEAR. that any of the important ends of marriage

Where more than one year has intervened could have been attained. It is morally cer- between the rendition of the judgment or final tain that sickness, grief, and sorrow must order sought to be reviewed and the filing of have been the sequence of such a union.

the petition in error in the Supreme Court,

this court is without jurisdiction to review the These considerations, with the possibility and

judgment of the trial court. probability of issue afflicted with this ter

[Ed. Note.--For cases in point, see Cent. Dig. rible malady, constrain us to hold that the vol. 2, Appeal and Error, $$ 1926, 1927.) marriage agreement was not binding-that it (Syllabus by the Court.)

« PreviousContinue »