Ball v. Ball

• Decision Date: 18 June 1948
• Citation: 36 So.2d 172,160 Fla. 601
• Parties: BALL v. BALL
• Court: Florida Supreme Court

36 So.2d 172

160 Fla. 601

BALL v. BALL

Florida Supreme Court

June 18, 1948

Rehearing Denied July 28, 1948.

Appeal from Circuit Court, Duval County; Bryan Simpson judge.

Harrell & Perrine, John W. Harrell and Robert R. Milam, all of Jacksonville, for appellant.

Crawford & May, J. T. G. Crawford and Philip S. May, all of Jacksonville, for appellee.

CHAPMAN, Justice.

The record in this case discloses that Edward Ball and Ruth Latham were married in Washington, D. C., on June 17, 1933, and shortly thereafter established a home on the St. Johns River on the outskirts of the City of Jacksonville, where they lived together as husband and wife until the month of January 1943. During the month of May, 1943, Mrs. Ball left the home and instituted a suit for divorce in the Circuit Court of Duval County, Florida, on the ground of mental cruelty and in her bill of complaint prayed for a divorce and other relief.

On December 6 1943, the defendant and cross-plaintiff, Edward Ball, filed an answer to the bill of complaint and a counterclaim in which he prayed for affirmative relief. On May 30, 1944, the court below, on motion of counsel for Mrs. Ball, entered an order dismissing her bill of complaint with prejudice to her right to again maintain a suit for divorce upon the facts alleged in the bill of complaint. In the same order the defendant, Edward Ball, was permitted to prosecute his counterclaim seeking or praying for an annulment of the marriage coutract and antenuptial contract of the parties entered into shortly prior to their marriage. One phase of this litigation was considered by this Court in an interlocutory certiorari proceeding, but our ruling therein is not pertinent to the issues presented on this appeal. Ball v. Ball, 155 Fla. 768, 21 So.2d 458.

On February 1 1946, by leave of the Court, the cross-plaintiff filed an amended counterclaim and, in part, alleged that the cross-defendant and the cross-plaintiff in early 1933 became engaged to marry and frequently exchanged ideas as to the responsibilities and obligations of marriage and the rearing and education of children which might be born to them as a result of their contemplated marriage, and their views on this point were set out in Sections Twelve and Thirteen of their antenuptial agreement signed by them on June, 15, 1933, and are viz.:

'Twelfth: It is agreed by and between the parties hereto that in the event the parties hereto have any child or children, that when one of the parties hereto shall have reprimanded, admonished or punished such child or children that even though the other party hereto may not have felt that such reprimand, admonishment or punishment was justified, no objection shall be raised to such reprimand, admonishment or punishment in the presence of the child or children; as the parties hereto realize that discipline is necessary and must be mutually enforced for the welfare and successful training and raising of child or children.

'Thirteenth: It is mutually agreed by and between the parties hereto that in the event the parties hereto have a child or children that such child or children shall have the benefit of a public school education up to and including the high school and that thereafter the parties hereto shall mutually decide whether it is desirable for such a child or children to have any additional educational facilities.'

No child was born to the marriage.

The amended counterclaim alleges that the antenuptial contract and the marriage between the parties are invalid and should be annulled because of fraud practiced on the cross-plaintiff by the cross-defendant. Some weeks prior to June 19, 1928, the cross-defendant consulted Dr. George B. Norberg, of Kansas City, Missouri, and was advised to undergo a surgical operation, which was performed at the Trinity Lutheran Hospital on June 19, 1928, by Dr. Norberg. The cross-defendant's right ovary and the right Fallopian tube were removed. The left ovary was not removed but cysts found thereon were punctured. The left Fallopian tube was either removed or some effort or steps taken by the surgeon to make the same patent. The cross-defendant was sterile on June 17, 1933, and for some time prior thereto, and cross-defendant knew it or had good reason to believe that she was sterile.

The amended counterclaim further alleged that it was the duty of the cross-defendant, before the marriage ceremony was performed, to make known to the cross-plaintiff the fact that in the year 1928 she had a surgical operation involving her genital organs. It was her lawful duty to give to the cross-plaintiff all the information in conection with such matters, things and conditions as were known to her and also all of the knowledge and information that she could have obtained by the exercise of ordinary diligence. The defendant failed and neglected to give the plaintiff any information whatever regarding the surgical operation and the cross-plaintiff did not know that the cross-defendant had ever had an operation involving her genital organs or that her genital organs had been diseased. He did not know prior to marriage or prior to the filing of her suit on the 24th of May, 1943, of the diseased condition of her genital organs and he learned for the first time of the surgical operation and the diseased genital organs after she had instituted suit against him for divorce.

The amended counterclaim also alleges that the cross-plaintiff performed his full duties as the husband of the cross-defendant, administered to her needs and wants in sickness and in health and transferred to her stocks and bonds and caused the title to described interests in real estate to be placed in her name. A bank account in the joint names of the parties was opened and the husband deposited therein income and earnings as provided for by the terms and provisions of the antenuptial contract and that the cross-defendant now holds this property, because of her fraud and deception, in trust for the cross-plaintiff as his trustee.

The counterclaim prays for a decree declaring the antenuptial contract and the marriage contract void ab initio and that all property transferred by the cross-plaintiff to the cross-defendant in contemplation of marriage be transferred or conveyed to him.

The cross-defendant, Ruth Latham Ball, in answering the amended counterclaim, admitted her marriage to Edward Ball; that she had been previously married at the age of 24 and lived with her former husband about seven years and she had no children; she married the cross-plaintiff in good faith at the age of 33 and he was 45, and prior to the marriage ceremony she signed the antenuptial agreement referred to; and she lived with the cross-plaintiff as his wife for approximately ten years, and no children were born to the marriage.

The cross-defendant in her answer admitted that prior to June 19, 1928, she consulted Dr. Norberg, a surgeon at Kansas City, Missouri, and, after an examination, he learned that she had a cystic ovary and a diseased appendix and advised her to undergo a surgical operation. For a short period of time prior to the operation until several hours afterward she was unconscious from the effect of an anaesthetic and of her own knowledge does not know and has never known whether her right ovary was cystic and greatly enlarged or whether her right Fallopian tube adhered around the cyst and stretched from its normal length of 2 1/2 or 3 inches to about 8 inches, or whether her left ovary was cystic and degenerated or whether her left Fallopian tube was diseased and the fimbriated end closed as alleged; she was advised by Dr. Norberg, shortly after the operation, that he had removed her appendix and one ovary. She had no further knowledge or information about the operation than as conveyed to her supra by Dr. Norberg, excepting the information appearing in a pleading to the contrary filed December 6, 1943.

Since the filing of the original counterclaim on December 6, 1943, by investigation and inquiry, she learned and believes that in said operation her appendix, right ovary and right Fallopian tube were removed and her left ovary was treated but not removed, and also that her left Fallopian tube was treated but not removed. She denied that on June 17, 1933, at the time of her marriage to the cross-plaintiff she was sterile. She denied that on said date, or any time prior thereto, she knew or had good reason to believe that she was sterile, but, on the contrary, she alleged that she was not sterile.

Answering further she admitted the operation was performed by Dr. Norberg at the Trinity Lutheran Hospital and a record of the operation was kept by the hospital, but she failed or omitted to inspect the hospital record as kept during her operation. She inquired of Dr. Norberg, after the operation and prior to her discharge on July 3, 1928, whether she could have a child and that he told her he saw no reason why she could not have a child and that he thought the best thing she could do would be to go home and have a baby. She alleged that all that was known to her of said operation at the time of the marriage was the removal of her appendix and one ovary.

The answer of the cross-defendant admits that she did not inform cross-plaintiff that one of her ovaries had been removed in the surgical operation but prior to marriage she did inform him that she had previously had a major operation and after marriage he knew or should have known that a major operation involved her genital organs. That the cross-plaintiff did not know that she was sterile bacause in fact she was not and is not sterile. After informing the cross-plaintiff of the major operation prior to marriage, his lack of information as to the diseased condition of the genital...