123 Ky. 754 | Ky. Ct. App. | 1906
Opinion by
Reversing.
The partie's to this litigation were married in August, 1904. They separated three days thereafter, and in June, 1905, the wife instituted this suit for a divorce from bed and board, and for alimony, the grounds relied upon being abandonment and failure to support. The husband answered, denying the allegations of the petition, and setting up a counterclaim, seeking an absolute divorce on the ground of such malformation on the part uf the wife as to prevent sexual intercourse. On these pleas issues were joined, proof taken, and upon final hearing, the trial court adjudged the husband entitled to the relief sought in his counterclaim, and granted him a divorce from his wife, Laura H. Mutter, and further adjudged that he should pay to her $335 alimony, and the cost of the proceeding, including $75 attorney’s fee allowed to her attorney. From this judgment, both parties appeal.
The proof shows that the appellee was a woman of mature years, more than 40 years of age; that appel
We are of opinion that appellant was not required, or called upon, to resort to surgery in order to construct a wife. He had a right to expect to find his wife of natural build and proportion, and, when such malformation existed as would, and did, prevent sexual intercourse, and this fact was concealed from him by appellee until after marriage, appellant was entitled to the decree granted. He was in no wise at fault, but the fault was wholly with the wife. She deceived appellant into marrying her by concealing from him her true physical condition. The word “fault” as used in the statutes means more than a wrong — an error — a deviation from the rules of propriety; it means, also, a defect, or blemish, or impairment of excellence, and it is in this latter sense that the appellee was in fault, and, being in fault, she was not enti
It being shown in this case that the wife was in fault, and but for such fault on her part no decree of divorce could have been granted, the trial court erred in allowing any alimony whatever to appellee.
The judgment is reversed and cause remanded, with direction for further proceedings consistent with this opinion.. .