Koehler v. Koehler

HART, J., (after stating the facts). The concealment of the fact that one of the contracting parties had a Venereal disease at the time of the marriage is not a ground of divorce in this State. The relief sought by the defendant was an annulment of the marriage on the ground of fraud, and the question of the nullity of the marriage should usually be made the subject of a direct proceeding for that purpose. 26 Cyc. 907-8. But a decree annulling a marriage may be entered in a proper case, although the relief asked is a divorce; and the defendant in a divorce proceeding may allege the nullity of the marriage and have a decree on proper proofs. 26 Cyc. 900; Bassett v. Bassett, 9 Bush. (Ky.) 696 and Nadra v. Nadra, 79 Mich. 591, 44 N. W. 1046. So, although the defendant asks for a divorce in his cross complaint, we will treat it as if he had prayed for an annulment of the marriage. The defendant proved by several physicians who had thoroughly examined and treated the plaintiff that she had syphilis in its tertiary stage and had had it for eleven years or more. One of them testified that she was incurable and that her condition was such that she might communicate it to her husband by having sexual intercourse with him. That she concealed from him that she had this disease prior to their marriage. Therefore, he contends that this is ground for the annulment of the marriage on the ground of fraud. The authorities on this question are in direct conflict, and we do not deem it necessary to decide it, for the reason that we think that a waiver of his rights to the annulment of the marriage on this ground sufficiently appears from the record. According to the testimony of Dr. Martin, he treated plaintiff from the fall of 1915 until mid-summer 1916. He made an examination of her blood, ascertained that she had syphilis, and treated her for that disease. Defendant came to him and told him that his wife was sick and wanted him to treat her. He talked with defendant about the treatment to be used. On account of the war, the supply of the treatment for that disease was cut down and he spoke of this to defendant. He never doubted but that defendant understood that he was treating her for syphilis. He talked with defendant from time to time and defendant knew what was being done in the treatment of his wife. Other physicians told of their treatment of plaintiff for the same disease in 1912 and 1914. They do not say that they told defendant that they were treating her for syphilis, but defendant knew that they were treating her. He admits that she told him before their marriage that she had some female ailment and that he consulted a physician about her and that the physician told him that he could cure her. The plaintiff testified that defendant showed her an application for a life insurance policy in which he stated that he had been afflicted with gonorrhea and that it was worse than syphilis. This shows that the defendant had some knowledge about these diseases. It is true the defendant denied any knowledge that plaintiff had syphilis when he married her, but when the testimony of the physician who is not shown to have any interest in the matter whatever, is considered in the light of the other facts and circumstances, we are of the opinion that a clear preponderance of evidence shows that the defendant had the knowledge that his wife had the syphilis for at least a year prior to their separation. This being true he is not entitled to an annulment of the marriage. He continued to live with his wife for a year or more after knowledge that she had syphilis, which he knew to be a commuicable disease, thus affirming the marriage relation notwithstanding the fraud, and is therefore barred of any action for annulment. Hence, we think the facts presented by the record show a waiver of the fraud, which is claimed was the basis of the action for annulment. ' This brings us to the question of the plaintiff’s right to a divorce. But little need be said on this branch of the case. If her testimony is true and is corroborated, it is sufficient to entitle her to a divorce. According to her testimony he continually called her a whore and accompanied the epithet with an oath. This was done systematically and repeatedly for more than a year prior to their separation. It is true he denies this, but in his testimony, he accuses plaintiff of leaving her daughter and going out for the purpose of having intercourse with men for hire. This shows his mental attitude toward plaintiff. The daughter of plaintiff corroborated her in every respect. She was 16 years old when the separation took place. Her testimony shows that she was of average intelligence. We think a preponderance of the evidence is in favor of the plaintiff and that she is entitled to a divorce. This brings us to a consideration of the separation agreement. It was made after their separation and after they had decided not to live together again. The plaintiff claims that she was deceived in making it. Her attorneys at the time, however, said that it was thoroughly explained to her and that she fully understood it at the time she signed it. It has been performed by the defendant. No useful purpose could be served by setting it out or commenting in detail upon the evidence relating to this branch of the case. It was fair to both parties and we think the chancellor was right in upholding it. McConnell v. McConnell, 98 Ark. 193. The defendant is a mail carrier in the city of Hot Springs and has no other means than his monthly salary. Therefore, the plaintiff’s attorneys will be allowed an additional fee of only twenty-five dollars for the services performed by them on appeal. It follows that the chancellor erred in not granting the plaintiff a divorce, and in granting an annulment of the marriage as prayed for by the defendant. For these errors the decree will be reversed and the cause remanded with directions to the chancellor to enter a decree in accordance with the opinion.