Hempel v. Hempel

• Decision Date: 08 March 1921
• Citation: 174 Wis. 332,181 N.W. 749
• Parties: HEMPEL v. HEMPEL.
• Court: Wisconsin Supreme Court

174 Wis. 332

181 N.W. 749

HEMPEL

v.HEMPEL.

Supreme Court of Wisconsin.

March 8, 1921.

Appeal from Circuit Court, Shawano County; E. V. Werner, Judge.

Action by Paul A. Hempel against Clara Hempel. Judgment for plaintiff, and defendant appeals. Reversed and complaint dismissed.

This action was commenced May 12, 1919, to annul a marriage of June 26, 1917. The amended complaint alleged as a first cause of action that at the time of the marriage the defendant was mentally incompetent and an imbecile; that the plaintiff was ignorant of such condition, and that the defendant and her mother through trickery induced the plaintiff to marry the defendant; that the defendant, being mentally incompetent, had no right to enter into a marriage relation; that by virtue of such fraud the plaintiff became and is the husband of the defendant, and prays that the marriage be annulled on the ground of fraud. For a second cause of action that the defendant willfully deserted the plaintiff on or about May 8, 1918. The relief prayed for was either that the marriage be set aside or a divorce granted. There was a general denial by defendant as to each cause of action. The findings of fact included the following:

“The court finds that at the time of said marriage the defendant was mentally incompetent and an imbecile, and did not have sufficient mental capacity to understand the marriage relation, and that the plaintiff was induced to marry said defendant through fraud and deception on the part of the defendant and her mother.

The court finds that the plaintiff did not know of said mental incompetency at the time of said marriage, and believed that the defendant was sound of mind.

The court finds that the plaintiff and defendant were not well acquainted, and that the plaintiff lacked opportunity to observe and know the true mental condition of the defendant.”

The judgment determined that the marriage be set aside and annulled, and both parties completely freed from all obligation thereof; that the records concerning said marriage be expunged and it be declared void. From such judgment the defendant has appealed.Dillett & Fischer, of Shawano, and F. Y. King, of Tigerton, for appellant.

Eberlein & Larson, of Shawano, for respondent.

ESCHWEILER, J. (after stating the facts as above).

The claim by plaintiff in his original complaint and renewed in the amended complaint for a divorce on the ground of desertion was apparently abandoned by him on the trial, and no findings made with reference thereto by the court.

The defendant was at the time of the trial about 27 years of age; the plaintiff's age does not appear. Plaintiff had known defendant some 2 years prior to the marriage in 1917, and had corresponded with her during that period. He had visited at her home about twice within the two months preceding the marriage. She had also visited at his home.

Testimony was received from three physicians, one of whom had known the plaintiff from early childhood. The testimony of the latter is to the effect that the defendant has ideas which are not corresponding with the normal active brain, and, while he would not call her directly insane, he would call her feeble-minded and that a home for the feebleminded would be the proper place for her; that her condition is of long standing; that from his knowledge and examination he would say that she is absolutely not a proper person to be married and have the cares of motherhood; that physically and mentally she would not be responsible for the child. The child would not be lead intelligently, and she could not give the proper mental training to the child.

Another physician who examined her at the time of the trial classified her as mentally weak, and that the proper place for a person in her condition is in some home for the feeble-minded; that she is hardly fit to give birth to a child; that her offspring would be very apt to be of a feeble-minded character, unless the father was an exceptionally bright man mentally; that her case is one where the brain has never developed. She is a child in a good many respects.

The third physician who was called as a witness for the defendant, and who had examined her just before the trial, testified that she was feeble-minded, with a type of insanity which he called melancholia; that he did not believe she has mental development, that he did not think she is of sufficient understanding to know to a greater or less degree the responsibilities of marriage; that the degree of feeble-mindedness is very slight.

The plaintiff testified that shortly prior to the marriage the defendant, her mother and defendant's brother-in-law, met him when he was working on the road, and told him he must marry the defendant; that shortly afterwards he accompanied the defendant to the county seat for the purpose of giving additional data needed for the obtaining of the marriage license; that he then returned to his own home, and within a day or two thereafter went to defendant's home and was there married. The plaintiff suggests that he married the defendant because she and her mother were insistent that he should, and that, out of considerations of pity for her, he did agree to do so.

After the marriage the two lived together in their own home for at least six months. Plaintiff then went to work in the woods, and the defendant went to live with her sister. The plaintiff was then drafted in the army and was in service from July 22, 1918, to February 10, 1919. The plaintiff on entering the service tried to arrange that the allotment pay for the support of the family should be paid to his mother rather than to the defendant. She, however, was able to have it so provided that payments were made to her amounting to about $200 during the time of his service. He contributed nothing else to her support during this time. While in the service he wrote to her, and made what he admits was a false statement, to the effect that he was keeping company with some other woman, and this was, as he says, for the avowed purpose of inducing her not to pester him any longer; that he desired in this manner to get rid of her. He did not visit her after his return from the army, and during the pendency of this action paid a portion only of the alimony provided for by order of the court.

Plaintiff also testifies that he did not know of her mental condition at the time of the marriage but did ascertain the same within two weeks after the marriage; that it was disclosed to him by what he designates as spells, one of them in particular in which she claims she saw the furniture moving about. She testified as to the same occurrence, and said it was no more than the recital to him of a dream that she had. He testified also as to a violent scene he had with her the day following the marriage. She testified as to the same occurrence that it was anger on her part at his boasting to her of some former sweetheart.

It conclusively appears, however, in this record that after his obtaining knowledge of her lack of mental capacity as early as two weeks after the marriage he nevertheless continued to cohabit with her, accepted money from her for the purchase of some of the household furniture and for their support, permitted her to handle the family funds, accepted her domestic services, and permitted her to assist in work in the field...