Upon the trial there was some indefiniteness in the evidence as to the seriousness of her condition. She admitted upon the witness stand that for about a year prior to the time of the trial she had been sleeping out of doors on the porch at the side of the house, in order to have the benefit of the open air; that while in Arizona she had lived most of the time in a tent, being much of the time confined to her bed, and having night sweats and a cough, and having had several "fainting spells"; that since her return she had been free from the night sweats, but still had the cough; that she had continuously followed, and was then following, the directions and treatment recommended by appellant and the books he had furnished her; that she was taking cod-liver oil and practicing the "breathing exercises." The doctors who attended her at the hospital made an examination and found that she was at that time afflicted with pulmonary tuberculosis. One physician who examined her a few days before the trial, at the request of her attorney, testified that she at that time had the disease. In fact, it was not disputed that she had never recovered since the engagement; but she believed herself to be much improved over her condition as it was when she started for Arizona. Her stepfather testified that their family physician had said that he did not deem it advisable for her to get married. Appellant testified that his father and mother had died from this disease, and that he had for many years practiced "breathing exercises" for self-protection therefrom. He urged that, by reason of the diseased condition of respondent and of the taint in himself, the proper functions of marriage could not be consummated, and that their marriage would be detrimental to the health of her, himself, and any issue they might have, and in contravention of public policy.

As to the question of the date of the engagement, and as to whether or not he knew of her having consumption at the time he became engaged to her, while the evidence would seem to make his version reasonable, yet as the jury evidently reached the other conclusion, we will accept their finding as correct. The trial court ruled upon the evidence and instructed the jury upon the theory that the appellant was liable for a breach of the agreement if, at the time of the making thereof, he knew the character of appellant's ailment. Proper exceptions, in different form, questioned the correctness of this view. The question presented to the court is this: Did appellant under the circumstances have a legal right to disregard the promise of marriage he had given respondent? In the domain of morals it is a maxim that a bad promise is better broken than kept. Moral considerations must have a predom

confronts us. In fact, they constitute the reason, the basis and the life of the law applicable in a case of this character. The most profound philosophers join with the wisest statesmen in maintaining the proposition that the home is the unit of the state, and that the character of a people and the stability and welfare of the nation must largely depend upon the healthful and wholesome influence of the home life. By reason of this, we find the home and the members thereof, esspecially the young and dependent, sheltered by the protecting care of various statutes, all being evidences and expressions of that public policy which deems the home and its inmates appropriate objects of the solicitude and care of the state. The paramount consideration involved in the determination of this case is not that appertaining solely to the parties to this action (although as to each of them it is of great importance), but it is as to the community, the state and to humanity in general. Here we have a man and woman engaged to be married. The man is of a family several members of which have died with pulmonary consumption. The woman is afflicted with the same disease to such an extent that it becomes necessary for her to go to a distant portion of the country to recuperate, which she does, returning with the affliction still upon her and with small, if any, assurances of recovery. Under these circumstances, if the marriage were to be consummated, what would be the natural consequences to be anticipated? Unconditional promises of marriage, exchanged by a man and woman, imply respectively that each is physically, morally, and legally competent to enter the status of matrimony, and capable, in so far as he or she knows or has reason to believe, of effectuating the principal purposes of the marriage relation. One of the most important functions of wedlock is the procreation of children. Offspring are the natural result, and ofttimes the chief purpose, of marriage. That the thought of bringing a child into the world should be one of the most serious that can engage the mind of a human being needs but to be suggested. Born amidst the most favorable environment, there lies before every babe a life of uncertainty so great that no worthy parent may contemplate it without a tremor of apprehension. Thus launched upon the sea of time and eternity, what parent can dwell upon the birth of his child without the keenest sense of anxiety and responsibility? If the child born in health and with a body of vigor be a matter of deep concern to a parent, what must be said of the advent of a babe burdened with the hereditary plague of consumption? That pulmonary tuberculosis is both contagious and hereditary, as these terms are commonly understood (although possibly not in a strictly technical and professional sense), as well as infectious admits of little, if any doubt. That a mother seriously ill with that disease and a father with a hereditary

and was suffering with a grave malady, involving the urinary organs *** and that an indulgence in sexual intercourse. would aggravate his disease, and likely shorten his life; and that it would be, not only a wrong and injustice to the defendant, but also to the plaintiff for him to marry in his condition of health. Marriage is assumed in law to be made for mutual comfort. The condition of the defendant precludes any hope of mutual comfort from cohabitation.

Our conclusion upon the law and the evidence is that the defendant acted throughout with good faith, and that the unhappy circumstances in which he found himself justified the alleged breach of his contract to marry the plaintiff." What was there said becomes particularly pertinent to the case at bar; the evidence of the medical experts here being to the effect that copula. tion would be exceedingly detrimental to one afflicted as was respondent.

Applicable in principle also is the case of Shackleford v. Hamilton, 93 Ky. 80, 19 S. W. 5, 15 L. R. A. 531, 40 Am. St. Rep. 166, which was based upon facts about as follows: Appellant prior to his engagement to respondent had contracted syphilis, but believed at the time of his engagement that he was thoroughly and permanently cured thereof. Some time after his engagement to respondent the effects of this disease again manifested themselves in so serious a form that physicians said it was doubtless incurable. Thereupon appellant informed respondent that he could not marry her. She declined to release him from his promise, and instituted an action for damages. The Supreme Court of Kentucky, in passing upon the case, said: "Where the marriage contract is consummated, the parties taking each other for better, for worse, for richer, for poorer, and agree to cherish each other in sickness and in health, the fact that the social standing of the one party or the other, cr their pecuniary condition, was not as represented. will afford no ground for relief; still, when there is a mere agreement to marry, there may be such a condition of the one party or the other as to health or other bodily infirmity arising subsequent to the agreement as would authorize either party to decline to enter into the marriage relation, and to hold otherwise would be to place such a contract upon the same footing with cases of mere personal chattels. *** The text-books establish the doctrine that 'without sexual intercourse the ends of marriage, the procreation of children and the pleasurse and enjoyments of matrimony, cannot be attained.' The first cause and reason of matrimony, says Ayliffe, 'ought to be the design of having offspring; so the second ought to be the avoiding of fornication. And the law recognizes these two as its principal ends, namely, a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident design of Divine Provi87 P.-41

dence.' 1 Bishop, Mar. & Div. (6th Ed.) 322. * It is impossible for the defendant to fulfill his contract. His disease renders him incapable of marriage without actual damage to the life of the woman he marries by communicating to her and through her to their offspring a loathsome disease that is now, from the testimony in the case, gradually destroying this unfortunate man. * * * No greater crime in law or morals could have been committed by the appellant than a performance of his agreement. The purity of our social system, the interest of the public in preserving sacred the marital relation, the protection of those whose existence may spring from such an unholy alliance, as well as the future welfare and happiness of the parties themselves, require that such a construction should be given this class of contracts; and if there was no precedent for the recognition of the doctrine announced, we would not hesitate to make one." The same court, in a subsequent case (Gardner v. Arnett, 50 S. W. 840, 21 Ky. Law Rep. 1) approved the decision and reasoning of the case just cited and, as to the case before it, observed: "IIe [defendant] owed it to the plaintiff and society to refuse to enter into marriage relations with her, and he had the right to abandon the contract and refuse to marry her at any time before their marriage was solemnized." In Ryder v. Ryder, 66 Vt. 159, 28 Atl. 1029, 44 Am. St. Rep. 833, the Supreme Court of Vermont annulled a marriage because the wife had a venereal disease endangering the health of her husband and any children she might bear. To the same effect, in principle. were the decisions in Smith v. Smith, 171 Mass. 404, 50 N. E. 933, 41 L. R. A. 800, 68 Am. St. Rep. 440: McMahen v. McMahen, 186 Pa. 485, 40 Atl. 795, 41 L. R. A. 802; Svenson v. Svenson, 178 N. Y. 54. 70 N. E. 120; and Martin v. Martin, 54 W. Va. 301, 46 S. E. 120. In the case of Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242. the Supreme Court of Michigan said: "While it is the policy of the law to encourage marriage, it is not the policy of the law to encourage unhappy marriages," and the court then, with express approval, quotes from Mr. Schouler, in 7 South. Law. Rev. 65, the following: "The marriage state ought not to be lightly entered into. It involves the profoundest interests of human life, transmitting its complex influences direct to posterity, and invading the happiness of parents and near kindred. *** From such a standpoint, we view the marriage engagement as a period of probation, so to speak, for both parties; their opportunity for finding one another out; and if that probation results in developing incompatibility of tastes and temperament, coldness, suspicion, and incurable repugnance of one to the other, though all this may impute no vice to either, nor afford matter for judicial demonstration, duty requires that the match be broken off." In the case of Allen v. Baker,

86 N. C. 91, 40 Am. Rep. 444, the Supreme Court of North Carolina spoke as follows: "We cannot understand how one can be liable for not fulfilling a contract, when the very performance thereof would in itself amount to a great crime, not only against the individual, but against society itself. *** It is likewise true, that whenever the main part of an executory contract becomes impossible of performance from any cause beyond the power of the party to control, it will be treated as having become impossible in toto. Why should not the same principle apply to a contract, the fulfillment of which, owing to causes subsequently intervening and altogether independent of any default of the party, can only be productive of consequences disastrous to the parties themselves, and such as may entail misery upon others to come after them? * * * The usual, and we may say legitimate, objects sought to be attained by such agreements to marry, are, the comfort of association, the consortium vitæ, as it is called in the books; the gratification of the natural passions rendered lawful by the union of the parties; and the procreation of children. And if either party should thereafter become, by the act of God and without fault on his own part, unfit for such a relation and incapable of performing the duties incident thereto, then, the law will excuse a noncompliance with the promise-the main part of the contract having become impossible of performance, the whole will be considered to be so." In Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. Rep. 302, the Supreme Court of Missouri employed this language: "Marriage is a contract, but it is not merely a civil contract, for it can only be entered into in a manner recognized by law, and can only be dissolved in a like manner. The state is the third party to every such contract, and has a direct interest therein. Blank v. Nohl, 112 Mo., loc. cit. 167, 20 S. W. 477, 18 L. R. A. 350; State v. Bittick, 103 Mo. 183, 15 S. W. 325, 11 L. R. A. 587, 23 Am. St. Rep. 869. Certain marriages are prohibited by law because of their detrimental effects upon society and the human species. Every contract of marriage implies that the contracting parties know of no legal or physical impediment to the contractual relation and its consequences. *** If the disease is of a temporary character-such as was the case here- and could be easily cured, the defendant is entitled to postpone the marriage until he is cured; and, if the disease is of a permanent character-such as was the fact in the North Carolina, Kentucky, and Virginia cases-the defendant is not only entitled to refuse to carry out the contract, but it is his duty to do so." In the case of Gring v. Lerch, 112 Pa. 246, 3 Atl. 841, 56 Am. Rep. 314, the Supreme Court of Pennsylvania spoke as follows: "It is a mistake to suppose, as was

assumed in the point, and affirmed by the court, that the impediment must be of such a nature as would be a ground of divorce after marriage. We are not now dealing with a question of divorce. That is a subject that is regulated by statute, and has no necessary relation to the case in hand. We are considering a contract to marry-a contract which calls for the richest good faith on both sides, and which neither party has the right to enforce against the other if incapable of performing the full marital duties. A man does not contract to marry a woman for the mere pleasure of paying her board and washing. He expects and is entitled to something in return; and if the woman with whom he contracts be incapable, by reason of a natural impediment, of giving him the comfort and satisfaction to which, as a married man, he would be entitled, then there is a failure of the moving consideration of such contract, and no court ought to enforce it by giving damages for its breach." In the early case of Atchison v. Baker, 2 Peake, 103, Lord Kenyon said: "It would be most mischievous, to compel parties to marry who could never live happily together;" and he cites Lord Mansfield as having held, in the case of Foulkes v. Sellway, 3 Esp. 236, that a defendant was not liable in damages for breach of promise where the character of the woman turned out to be different from what he had reason to believe it, and that an infirmity, either bodily or mental, would excuse fulfillment of the marriage agreement.

It is a fundamental proposition that a contract contravening the provisions or policy of a public law is void or voidable. MacIntosh v. Renton, 2 Wash. T. 121, 3 Pac. 830; Cannon v. Cannon, 26 N. J. Eq. 316; Bowman v. Gonegal, 19 La. Ann. 328, 92 Am. Dec. 537: Bishop on Contracts (Enlarged Ed.) § 470, reads: "No agreement between parties to do a thing prohibited by law, or subversive of any public interest which the law cherishes, will be judicially enforced." And at section 473, the following appears: "A contract invading any one of the other interests which the law cherishes, though to do what is neither indictable nor prohibited by a statute. termed a contract against public policy (or sound policy), is likewise void." 9 Cyc. p. 481, says this: "If an agreement binds the parties or either of them, or if the consideration is to do something opposed to the public policy of the state or nation, it is illegal and absolutely void, however solemnly made. If the court should enforce such agreements it would employ its functions in undoing what it was created to do. It is not easy to give a precise definition of public policy. It is perhaps correct to say that public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be designated, as it has sometimes been, the poiicy of the law or public policy in relation to

the administration of the law. Where a contract belongs to this class, it will be declared void, although in the particular instance no injury to the public may have resulted. In other words its validity is determined by its general tendency at the time it is made, and if this is opposed to the interests of the public it will be invalid, even though the intent of the parties was good and no injury to the public would result in the particular case. The test is the evil tendency of the contract and not its actual injury to the public in a particular instance." To the same effect, 15 Am. & Eng. Enc. of Law (2d Ed.) p. 933.

Counsel for respondent cite us to cases where a man, promising to marry a woman whom he knew to have been formerly unchaste, was held to be bound by such promise. Such a case and this are not analogous. There the man by his promise overlooks the former shortcomings of the woman, and it is a matter concerning him only. She would have the ability to, and presumably would, reform and become a good wife and worthy mother. This is to the advantage of society, and not inconsistent with sound public policy, and the law should interpose no hindrance thereto. But a consumptive woman is physically incapable of becoming a healthful companion or the mother of healthy issue. It is not a condition that she voluntarily created or can change at will. The evils to follow her marriage could not be confined to herself and husband, but must of necessity concern and injuriously affect others. The nature and natural sequences of a contract of marriage are such that the state is of necessity a third party to, and interested in, every such agreement. Its interests forbid the enforcement of such a contract between parties physically incapable of making the married. state beneficial to themselves or society. We are not disposed to take into consideration any matters personal only to the appellant. If he knew of the nature of respondent's ailment when he agreed to marry her and agreed to make her his wife, notwithstanding the same, he ought not to escape responsibility by reason of any inconvenience affecting only himself. But the interests of the community and state step in, and, with the dictates of humanity, demand that no human compact shall be upheld that has for one of its principal objects the bringing into the world of helpless, hopeless, plague-cursed, innocent babes. We can sanction the breaking of a promise and relieve from the terms of a deliberate agreement only when the alternative involves results more deplorable. Had these parties married, it is inconceivable that any of the important ends of marriage could have been attained. It is morally certain that sickness, grief, and sorrow must have been the sequence of such a union. These considerations, with the possibility and probability of issue afflicted with this terrible malady, constrain us to hold that the marriage agreement was not binding-that it

was the privilege of either party to withdraw therefrom. Rule 126 of Greenhood on Public Policy reads as follows: "No one can estop himself from proving facts which will show a contract to be opposed to public policy." It having been the privilege and, as we believe, the moral and legal duty of appellant to decline to carry out the agreement, he cannot be held responsible in damages for so doing. The following authorities bear some of the questions here involved. Turnbull v. Farnsworth, 1 Wash. T. 444; Standard Furniture Co. v. Van Alstine, 22 Wash. 670, 62 Pac. 145, 51 L. R. A. 889, 79 Am. St. Rep. 960; Graves v. Johnson, 156 Mass. 211, 30 N. E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L. Ed. 468; Ah Doon v. Smith, 25 Or. 89, 34 Pac. 1093; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717; Woodworth v. Bennett. 43 N. Y. 273, 3 Am. Rep. 706; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Ralston v. Boady, 20 Ga. 449; Mabin v. Webster, 129 Ind. 430, 28 N. E. 863, 28 Am. St. Rep. 199; Ryder v. Ryder, 66 Vt. 158, 28 Atl. 1029, 44 Am. St. Rep. 833; Gulick v. Gulick, 41 N. J. Law, 13; Kantzler v. Grant, 2 Ill. App. 236; Walker v. Johnson, 6 Ind. App. 600, 33 N. E. 267, 34 N. E. 100; Miller v. Rosier, 31 Mich. 475; Sprague v. Craig, 51 Ill. 2S8; 4 Am. & Eng. Enc. of Law, 893, 894, and note; Wharton, Contracts, 324; Pollock, Contracts, 377; 2 Addison on Contracts; Gould & Pyle Cyclopedia Medicine & Surgery; Story on Contracts, § 675; Anders, Practice of Medicine, 268, 270-272; Beach, Modern Contract Law, 1498, 1499.

The judgment of the honorable superior court is reversed, and the cause remanded, with instructions to dismiss the action.

MOUNT, C. J., and DUNBAR, CROW, HADLEY, FULLERTON, and RUDKIN, JJ., concur.

(17 Okl. 260)

HEBEISEN v. HATCHELL. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. APPEAL-TIME OF TAKING.

Under section 574 of our Civil Code (Wilson's Rev. & Ann. St. 1903, § 4772), proceedings for reversing, vacating or modifying judgment or final orders must be commenced in the Supreme Court within one year after the rendition of the judgment or making of the final order which is sought to be reviewed by this court, unless the person entitled to such proceeding be under disability, as provided in said section.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2. Appeal and Error, §§ 1879-1882.] 2. SAME JURISDICTION AFTER ONE YEAR. Where more than one year has intervened between the rendition of the judgment or final order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court is without jurisdiction to review the judgment of the trial court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1926, 1927.]

(Syllabus by the Court.)