31 P. 571 | Cal. | 1892
Action to annul marriage, on the ground that plaintiff’s consent to marry was obtained by fraud, and upon the further and distinct ground that the defendant was physically incapable of entering into the marriage state. The cause having been tried by the court, judgment was rendered in favor of plaintiff, from which, and from an order denying her motion for a new trial, the defendant has appealed.
The complaint, after stating the marriage on the fifteenth day of September, 1889, generally and meagerly alleges the cause of action as follows: “ (3) For the purpose of inducing the plaintiff to consent to the said marriage, the defendant falsely an'd fraudulently represented that she was chaste and virtuous, and physically competent to marry plaintiff, and concealed from plaintiff her real condition, claiming then to be pregnant by plaintiff, but chaste and virtuous as to all other men, and that, save plaintiff, she had never had sexual intercourse or connection with any man. All which representations were false and fraudulent. (4) That defendant was not then and there physically competent to marry plaintiff, but was at the time of said marriage pregnant by some other man than plaintiff. (5) That plaintiff relied upon said representations, and was induced to consent to the said marriage by the said representations, and, if the same had not been made, and said concealment practiced, he would have never consented to the said marriage. (6) That upon the discovery of the falsity of the said representations the plaintiff ceased to cohabit with the defendant and has never since cohabited with her.” The answer of the defendant specially denies that she made the false and fraudulent representations charged, and denies that she was physically incompetent to marry the plaintiff; admits that she was pregnant by the
The court found as follows: “ (1) That on the fifteenth day of September, 1889, at the city and county of San Francisco, state of California, plaintiff and defendant intermarried. (2) That on or about the twentieth day of April, 1889, plaintiff and defendant had voluntary sexual intercourse with each other, and that on or about the fourteenth day of August, 1889, and at divers other times in said month before the date of said marriage, defendant and defendant’s then attorney, James Herrmann, represented to plaintiff that defendant was pregnant and with child by plaintiff, and that she was chaste and virtuous as to all other men, and that she was physically competent to marry plaintiff. (3) That plaintiff, to satisfy himself of the truth or falsity of these representations, did, before his said marriage with said defendant, act as a careful and prudent man should act, and in all respects used due and proper care. (4) That at and after the making of said representations, and at and after the marriage of said plaintiff and defendant, defendant concealed from plaintiff her true condition. That defendant, at and prior to the making of said representations, and at the time of her marriage with said plaintiff, was pregnant, not by plaintiff, but by a man other than plaintiff. (5) That plaintiff, at and after the time of his marriage with defendant, believed in and relied upon the said representations, and in consequence of said representations and belief plaintiff was deceived into and induced to consent to said marriage; and if said representations had not been made, and said concealment of her true condition practiced by defendant upon plaintiff, plaintiff would not have intermarried with defendant. That the said representations, and each and all of them, were untrue and false and fraudulent, and at the time said representations were made by defendant to plaintiff defendant well knew that they were untrue, false, and fraudulent. (6) That defendant, by reason of the fact that she was pregnant by a man other than plaintiff, was at the time she married plaintiff physically incompetent to marry him, and that her concealment from plaintiff of her true condition was a fraud upon plaintiff. (7) That plaintiff did not discover the fraud which had been
On August 22, 1889, the defendant—then Miss Bruhn, and still a minor—by her guardian, Peter F. Bruhn, her father, commenced an action against the plaintiff herein to recover $50,000 damages for seduction, alleged to have been accomplished on the eighteenth day of March, 1889. It appears that plaintiff herein had notice that defendant was pregnant, and claimed that he was the father of the child, before the action for seduction was commenced, but it does not appear by what means he was notified nor that any demand had been made upon him either to marry or pay damages before the commencement of that action. Nor does it appear that he was ever requested by defendant or her parents to marry her. He testified that he called upon her at her father’s house a day or two after the action for seduction was commenced and complained that no effort had been made to settle the matter quietly with him before commencing the action, and that she then said she had not advised the action, and that her father had commenced it without her approval. He then told her in the presence of her mother that if he was the father of the child, he was willing to marry her, and “that they had no business to go to law about it.” Plaintiff further testified that the defendant first told him that he and no other man was the father of the child at her lawyer’s office, on the day they got their marriage license (September 15th), and that her lawyer—Mr. Herrmann—then made her swear to it; and that her lawyer promised that if the time of the birth of the child should not correspond with plaintiff’s reckoning, he
The only authority for any exception to the rule, as above stated, which I have been able to find is to be found in the extreme cases of Barden v. Barden, 3 Dev. 548, and Scott v. Shufeldt, 5 Paige Ch. (N. Y.) 43, in each of which the parties were white and the child begotten before marriage was a mulatto. Bach of these cases was decided upon the facts stated in the complaint, and upon a demurrer. In the first, Ruffin, J., who delivered the opinion of the court, expressly characterized his concurrence in it as “a concession to the deep-rooted and virtuous prejudices of the community upon the subject.” Another distinguishing attribute upon which the exception is said to have been grounded is that “the blood of the woman, as physiologists tell us, has been tainted by mingling with that of the first (mulatto) child, and she is incapable of bearing children that will not show the mixture of African blood”: See dissenting opinion of Rodman, J., in Long v. Long, 77 N. C. 304, 24 Am. Rep. 449. In each of those cases the mulatto child had been born before the marriage, but the putative father, in one case, had not seen it, and in the other had not discovered that it was a mulatto until after marriage. In the New York case (Scott v. Shufeldt) the court said: “If the child had not been born at the time of the marriage, the complainant would have had some difficulty in showing that he had been intentionally deceived and defrauded by the defendant, as she might possibly have supposed the child to be his, although she had also had connection with a negro about the same time.” Possibly other extremely hard cases may occur sufficiently distinguishable from the cases above cited to justify additional exceptions to the rule, but such cases need not be anticipated, since this case certainly is not one of them.
So far as plaintiff’s alleged grievance is founded upon fraud, the substance of it is, according to his own testimony,
The finding that defendant was physically incompetent to marry the plaintiff is not justified by the evidence, as there is no evidence tending to prove that she was diseased or defective in physical organization. This ground for annulment of marriage, as expressed in sections 58 and 82 of the Civil Code, is entirely distinct from that of fraud. It consists solely of such physical defect or incurable disease existing at the time of marriage as will prevent sexual coition: Bishop on Marriage and Divorce, secs. 757, 766, 768. The case of Baker v. Baker, 13 Cal. 88, has no bearing whatever upon the question of physical incapacity as a cause for the annulment of a marriage. That was an action for a divorce on the sole ground of fraud, and the judgment of the appellate court was placed upon that ground alone, in accordance with the fifth
We concur: Haynes, C.; Belcher, C.
For the reasons given in the foregoing opinion the judgment and order are reversed.