246 Mass. 353 | Mass. | 1923
This is a libel for a sentence of nullity of marriage, on the ground that the libellee was suffering from epilepsy at the time of the marriage, and fraudulently concealed that fact from the libellant. The trial judge found that the parties were married on August 8, 1920, after an acquaintance of about four months; that the libellee knew she had long been suffering from epilepsy, but told the libellant merely that sometimes when overworked she had fainting spells which were not serious; that the marriage was consummated by sexual intercourse on various occasions up to September 8, 1920; that she had one or two attacks of the disease during that period, but he learned the nature of jher ailment for the first time on said September 8; that he then ceased to occupy the same bed with her, and the parties have lived apart since September 29, 1920. The judge further found, from medical testimony, that epilepsy is an incurable disease, and is hereditary. He ordered the libel dismissed, being of opinion that it could not be granted under our law, and reported the case. Counsel for the libellee filed no brief.
By the law of this Commonwealth marriage is regarded as more than a civil contract. After cohabitation, at least, it ripens into a status, which affects the parties thereto, their posterity and the whole community. As was said by Knowlton, J., in Smith v. Smith, 171 Mass. 404, 407: “ It is a change which, for important reasons, the law recognizes, and it inaugurates conditions and relations which the law takes under its protection. It is of such a nature that it cannot be lightly disregarded. The contracting parties take each other for better or for worse, and agree to abide the consequences of misinformation or mistake in regard to each other.” And in the basic case of Reynolds v. Reynolds, 3 Allen, 605, Chief Justice Bigelow used this language (page 607): “In the absence of force or duress, and where there is no mistake as to the identity of the person, any error or misapprehension as to personal traits or attributes, or c.oncerning the position or circumstances in life of a party, is deemed wholly immaterial, and furnishes no good cause for divorce. Therefore no misconception as to the character,
It is settled by our decisions that fraud, in order to avoid a marriage, must go to the essence of this contract. Concealment, by a woman of her previous unchastity will not ordinarily render a marriage invalid. Safford v. Safford, 224 Mass. 392. And see Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330. The same is true of the concealed existence of syphilis in one of the parties. Vondal v. Vondal, 175 Mass. 383. In Smith v. Smith, supra, where there was no consummation, and the trial judge found that the libellee was constitutionally afflicted with syphilis “ with which the libellant would become infected in case of cohabitation,” and “ the disease would be transmitted to any offspring which they might have,” it was held merely that on the facts the judge of the Superior Court had power to enter a decree for the libellant. In the Reynolds case false representations of the woman that she was chaste, when in fact she was pregnant by another man, were held to go directly to the essentials of the marriage contract.
We are not aware of any case in this Commonwealth where the fraudulent concealment of a disease other than venereal has been considered on the question under consideration except Cummington v. Belchertown, 149 Mass. 223. It was
As was said in Chipman v. Johnston, supra (page 505): “ The strict rule has been somewhat relaxed in other jurisdictions either by statute or by judicial decision. ... It is unnecessary to examine those decisions because we are of opinion that under principles heretofore declared by this court the libellant can be given no relief in this proceeding.”
Order dismissing petition affirmed.
