Brown v. Greer

This is an appeal from a decree dismissing plaintiff's petition for an annulment of a marriage. Plaintiff and defendant were married on the 16th day of July, 1937, a license for the marriage having been issued by the probate court of Kent county in accordance with the provisions of 3 Comp. Laws 1929, § 12717 (Stat. Ann. § 25.51). This statute reads: "The judge of probate of each county in the State shall have authority, and it shall be his duty to issue, without publicity, a marriage license to any female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man and has been considered as his wife, or for other good reason, expressed in such application and deemed to be sufficient by the judge of probate, desires to keep the exact date of the marriage a secret, to protect the good name of herself and the reputation of her family: Provided, That such judge of probate shall have authority to marry persons under marriageable age, where the female is with child, or where she has been living with some man as his wife, in cases in which the application for such license is accompanied by the written request of the parents of both parties, if living, and their guardian or guardians if either or both of the parents are dead, or by the written request of the parent or guardian, as the case may be, of the one under marriageable age, where only one is under the marriageable age now fixed by the statute, when, according to his judgment, such marriage would be a benefit to public morals." Defendant was then 14 years of age and plaintiff was 17. The baby was born on the 3d day of February, 1938. Fifteen days after its birth, plaintiff filed a petition for annulment, claiming that, at the time of the marriage, defendant was afflicted with *Page 221 syphilis. The act upon which plaintiff bases his claimed right to annulment reads in part: "No insane person, idiot, or person who has been afflicted with syphilis of gonorrhea and has not been cured of the same, shall be capable of contracting marriage." 3 Comp. Laws 1929, § 12695 (Stat. Ann. § 25.6). The record shows that a Kahn precipitation test of defendant's blood, taken on October 25, 1937, resulted in a positive showing of syphilis. A physician, testifying for plaintiff in answer to a hypothetical question containing facts shown in the record, stated that, in his opinion, defendant could have been afflicted "certainly longer than three or four months." He added: "The law of averages would certainly indicate that on the 16th day of July, 1937, she was afflicted with syphilis. That, of course, is not an absolutely positive test. There are certain rare conditions which make a positive test which would not be syphilis, but the law of averages speaks very much in favor of its being syphilis." Another physician connected with the city of Grand Rapids as director of social hygiene, who examined the defendant at about the time of her blood test, stated that, in his opinion, she had been afflicted for at least six months. He said that his examination was made to determine whether "it was acute, infectious, whether it was early secondary or late secondary or tertiary." He did not treat the case "as an acute infectious stage," there being no "evidence of recent origin of it." He was unable to state whether or not the disease was acquired or inherited and his records did not show that defendant had been cured at the time of the trial. *Page 222 The trial judge said in reference to 3 Comp. Laws 1929, § 12695 (Stat. Ann. § 25.6): "The act takes away the capacity to contract. Regardless of the act, plaintiff and defendant had no such power and a marriage between these parties only became a valid one when consummated under the provisions of the sections above referred to. * * * "The law should not be extended to declare a marriage performed under the conditions and circumstances as existed in this case a void marriage. The statute permitting and providing for a marriage of parties of the age of these should not be nullified by the application of the provisions of another statute." The purpose of section 12717 is wholly different and apart from that of section 12695. The former removes, under certain conditions, only the incapacity of lack of marriageable age. The disability imposed upon those afflicted with a venereal disease, without having been cured, is not remedied by the statute permitting a probate judge to issue a license to persons under marriageable age. We make no comment as to the effect of Act No. 207, Pub. Acts 1937, as amended by Act No. 112, Pub. Acts 1939, neither of which was in force at the time of this marriage. The decree dismissing plaintiff's bill of complaint is vacated and one may be entered here granting plaintiff an annulment. The settled policy of the State to legitimatize issue as expressed in 3 Comp. Laws 1929, § 12717 (Stat. Ann. § 25.51), and 3 Comp. Laws 1929, § 12723 (Stat. Ann. § 25.81), should not be thwarted by the conclusion we are forced to reach in the instant case. Section 12723 reads as follows: "All marriages which are prohibited by law on account of consanguinity or affinity between the parties, *Page 223 or on account of either of them having a former wife or husband then living, and all marriages solemnized when either of the parties was insane or an idiot, shall, if solemnized within this State, be absolutely void, without any decree of divorce or other legal process: Provided, That the issue of such marriage, except that contracted while either of the parties thereto had a former husband or wife living, shall be deemed legitimate." Its language does not include the issue of marriages that are void by reason of 3 Comp. Laws 1929, § 12695 (Stat. Ann. § 25.6). The legitimatizing proviso of section 12723 was added in 1883 (Act No. 24, Pub. Acts 1883), and the venereal disease provisions of section 12695 were added in 1899 (Act No. 247, Pub. Acts 1899). See footnotes in Stat. Ann. § 25.81 and § 25.6 for history of these enactments. It is difficult to believe that, at the time the 1899 amendment to section 12695 was made, the legislature knowingly failed to amend the saving clause of section 12723 to include the issue of a marriage void because of a venereal condition existing at the time the marriage was contracted. It is repugnant to the ends of justice that an innocent child should be made to suffer, either by a species of legal bastardization or by deprivation of needed support. Plaintiff must be held to all the responsibilities imposed on a father and his innocent offspring must be deemed his legitimate issue. The decree of annulment should so provide. Under the circumstances no costs should be allowed. SHARPE, NORTH, and BUTZEL, JJ., concurred with BUSHNELL, C.J.