Grover v. Zook

• Decision Date: 24 November 1906
• Citation: 44 Wash. 489,87 P. 638
• Parties: GROVER v. ZOOK.
• Court: Washington Supreme Court

87 P. 638

44 Wash. 489

GROVER v. ZOOK.

Supreme Court of Washington

November 24, 1906

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Rosena E. Grover against James E. Zook. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded with instructions to dismiss the action.

John E Humphries, George B. Cole, and William E. Humphrey, for appellant.

John B Hart, for respondent.

ROOT J.

This is an action by respondent to recover damages against appellant for breach of contract of marriage. From a judgment in favor of respondent, the case comes here on appeal.

The principal defense urged by appellant is that respondent, at the time of the mutual promises of marriage, was afflicted with pulmonary tuberculosis (commonly called consumption), in an incurable form, and has ever since been physically incapable of entering into the marriage relation. It was the contention of the respondent in the trial court and here that this condition of respondent constitutes no defense to her action, for the reason that appellant knew thereof at the time he promised to marry her. It is admitted by respondent that she was afflicted with this disease at the time the engagement of marriage was entered into, although she claims that she did not know at that time that the malady affecting her was consumption. There is a conflict in the evidence as to whether or not appellant knew of the character of her illness at the time of the engagement. He swears that he did not. The question of whether or not he did turns upon the question as to when the engagement took place. He claims that they became engaged on the evening of the 6th of January, 1904. She and her mother and stepfather claim that the engagement did not take place until the 10th of January 1904. It appears that they had some talk about the matter on the evening of January 6th, and it is admitted that she at that time took from her finger a ring, and gave it to him to take to the jeweler's to be used as a measurement for an engagement ring. He took the ring, used it for that purpose, and presented her with the engagement ring on the next Sunday, January 10th. Her mother and stepfather testify that on the latter date they informed appellant that the ailment from which respondent was suffering was consumption, that this information was given him while she was not present, that he said he would marry her notwithstanding this, and that it was then planned by them that she should be sent to Arizona, where it was believed that the climate would cure ot ameliorate her diseased condition. Appellant denies that he knew of the character of her ailment until after she had gone to Arizona. Her mother testified that she informed respondent of the nature of the malady after she reached Arizona. A correspondence was maintained during the time she was there, between herself and appellant; he making her many suggestions as to taking case of herself, and as to the character of treatment she should follow, and sending her books and pamphlets giving such information and directions. She returned in the following April much improved, as she believed. However, she had an attack of appendicitis, necessitating an operation, which seriously weakened her. She was in the hospital 16 days on account of this operation, leaving there on the 16th of May. It was understood between them that their marriage was to take place in June. On account of her physical condition in June, it was mutually agreed that the marriage should be postponed until autumn. When the latter season arrived, she and her parents requested appellant to carry out his promise of marriage. It seems that there had been an understanding between them that they would get married and attend the World's Fair in St. Louis, in September or October. She and her parents urged upon appellant the carrying out of this plan. He insisted that she was physically unable to be married, but that he would marry her when she recovered. The controversy growing out of the matter occasioned strained relations between the parents and appellant, and he visited their home seldom thereafter. Finally, in December, 1904, he wrote respondent a letter in effect expressing a desire to terminate the engagement.

Upon the trial there was some indefiniteness in the evidence as to the seriousness of her condition. She admitted upon the witness stand that for about a year prior to the time of the trial she had been sleeping out of doors on the porch at the side of the house, in order to have the benefit of the open air; that while in Arizona she had lived most of the time in a tent, being much of the time confined to her bed, and having night sweats and a cough, and having had several 'fainting spells'; that since her return she had been free from the night sweats, but still had the cough; that she had continuously followed, and was then following, the directions and treatment recommended by appellant and the books he had furnished her; that she was taking cod-liver oil and practicing the 'breathing exercises.' The doctors who attended her at the hospital made an examination and found that she was at that time afflicted with pulmonary tuberculosis. One physician who examined her a few days before the trial, at the request of her attorney, testified that she at that time had the disease. In fact, it was not disputed that she had never recovered since the engagement; but she believed herself to be much improved over her condition as it was when she started for Arizona. Her stepfather testified that their family physician had said that he did not deem it advisable for her to get married. Appellant testified that his father and mother and died from this disease, and that he had for many years practiced 'breathing exercises' for self-protection therefrom. He urged that, by reason of the diseased condition of respondent and of the taint in himself, the proper functions of marriage could not be consummated, and that their marriage would be detrimental to the health of her, himself, and any issue they might have, and in contravention of public policy.

As to the question of the date of the engagement, and as to whether or not he knew of her having consumption at the time he became engaged to her, while the evidence would seem to make his version reasonable, yet as the jury evidently reached the other conclusion, we will accept their finding as correct. The trial court ruled upon the evidence and instructed the jury upon the theory that the appellant was liable for a breach of the agreement if, at the time of the making thereof, he knew the character of appellant's ailment. Proper exceptions, in different form, questioned the correctness of this view. The question presented to the court is this: Did appellant under the circumstances have a legal right to disregard the promise of marriage he had given respondent? In the domain of morals it is a maxim that a bad promise is better broken than kept. Moral considerations must have a predominating influence upon such a question as now confronts us. In fact, they constitute the reason, the basis and the life of the law applicable in a case of this character. The most profound philosophers join with the wisest statesmen in maintaining the proposition that the home is the unit of the state, and that the character of a people and the stability and welfare of the nation must largely depend upon the healthful and wholesome influence of the home life. By reason of this, we find the home and the members thereof, especially the young and dependent sheltered by the portecting care of various statutes, all being evidences and expressions of that public policy which deems the home and its inmates appropriate objects of the solicitude and care of the state. The paramount consideration involved in the determination of this case is not that appertaining solely to the parties to this action (although as to each of them it is of great importance), but it is as to the community, the state and to humanity in general. Here we have a man and woman engaged to be married. The man is of a family several members of which have died with pulmonary consumption. The woman is afflicted with the same disease to such an extent that it becomes necessary for her to go to a distant portion of the country to recuperate, which she does, returning with the affliction still upon her and with small, if any, assurances of recovery. Under these circumstances, if the marriage were to be consummated, what would be the natural consequences to be anticipated? Unconditional promises of marriage, exchanged by a man and woman, imply respectively that each is physically, morally, and legally competent to enter the status of matrimony, and capable, in so far as he or she knows or has reason to believe, of effectuating the principal purposes of the marriage relation. One of the most important functions of wedlock is the procreation of children. Offspring are the natural result, and ofttimes the chief purpose, of marriage. That the thought of bringing a child into the world should be one of the most serious that can engage the mind of a human being needs but to be suggested. Born amidst the most favorable environment, there lies before every babe a life of uncertainty so great that no worthy parent may contemplate it without a tremor of apprehension. Thus launched upon the sea of time and eternity, what parent can dwell upon the birth of his child without the keenest sense of anxiety and responsibility? If the child born in health and with a body of vigor be a matter of deep concern to a parent, what must be said of the advent of a babe burdened with the hereditary plague of consumption? That pulmonary tuberculosis is both contagious and hereditary, as these terms...