Mabin v. Webster

• Decision Date: 29 October 1891
• Docket Number: 14,751
• Citation: 28 N.E. 863,129 Ind. 430
• Parties: Mabin v. Webster
• Court: Indiana Supreme Court

28 N.E. 863

129 Ind. 430

Mabin v. Webster

No. 14,751

Supreme Court of Indiana

October 29, 1891

From the Dearborn Circuit Court.

Judgment reversed, with instructions to proceed in accordance with this opinion.

W. S Holman, W. S. Holman, Jr., J. K. Thompson and A. C. Downey for appellant.

H. D McMullen, W. R. Johnston, H. McMullen, G. M. Roberts and C. W. Stapp, for appellee.

OPINION

Olds, J.

This is an action to recover damages for an alleged breach of a marriage contract.

The first error assigned is that the court erred in overruling the appellant's motion to reject parts of the complaint, and the second error assigned is the overruling of the appellant's demurrer to the complaint.

We do not deem it necessary to set out the complaint or any portion of it, for it is clearly sufficient to withstand a demurrer, and the motion to reject parts was intended to take the place of and is to the same effect as a motion to strike out parts of the complaint, and there was no error in overruling the motion.

The next alleged error is in sustaining a motion to reject the third paragraph of appellant's answer.

This ruling of the court struck out the third paragraph of appellant's answer. Under our practice it is more commonly called a motion to strike out than to reject.

The third paragraph of answer was an attempt to plead a rescission of the marriage contract. The question as to whether or not it is properly pleaded so as to withstand a demurrer is not before us.

A motion to strike out admits the truth of all the facts well pleaded for the purpose of the motion, and the motion should not be sustained if the facts stated in the paragraph are relevant or pertinent to the question to which they are addressed, though not sufficient to withstand a demurrer. This is the doctrine as held by this court in the case of Chicago, etc., R. W. Co. v. Summers, 113 Ind. 10, 14 N.E. 733, and is well supported by authority. Such a motion will not perform the office of a demurrer. Burk v. Taylor, 103 Ind. 399, 3 N.E. 129. The rescission of the contract was a proper defence to be pleaded to the action, and such defence was not admissible under any other paragraph of answer.

It is contended by counsel for appellee that such defence was admissible under the general denial, which was pleaded.

A plea alleging a rescission of contract is an affirmative plea. It admits the making of the contract, and alleges a rescission of it. The court erred in striking out the third paragraph of answer.

The sustaining of a demurrer to the fourth paragraph of appellant's answer is assigned as error.

This paragraph attempts to plead that the appellant was afflicted with epilepsy, rendering it unsafe and improper for him to consummate the marriage contract with appellee. The paragraph is so indefinite and defective in its allegations of fact as to be clearly bad, even if the defence attempted to be pleaded would be good if properly pleaded. There was no error in sustaining the demurrer to this paragraph.

It was claimed on behalf of the appellant that he was afflicted with epilepsy, which was incurable, and that the assumption of marital relations would aggravate the disease and produce both physical and mental weakness and hasten his death.

On the trial of the cause the appellant offered to read, in his own behalf, the deposition of one T. C. Smith, a competent physician. The witness testified to the appellant having epilepsy, and having treated him for the same during 1883 and 1884.

The appellee objected to the reading of questions 8 and 9 and the answers thereto, which objection was sustained and proper exceptions reserved, and it is contended that such ruling is error. Questions 8 and 9, and the answers thereto, are as follows:

"Q 8. I ask you, as a medical expert, the following question: What would be the probability of ultimate recovery of a man fifty years of age who has been afflicted with epilepsy for a period of five years or more, the epileptic fits being of a violent character, and occurring at irregular intervals of from three to fifteen times a year? A. There would be little, if any, probability of recovery. It is possible, but not at all probable.

"Q 9. What effect would marriage probably have upon a man fifty years of age who has never been married, who is and has been subject to epileptic fits during a period of ten years, the attacks becoming more frequent from their incipiency,--I mean upon the mental and physical health of the man? A. The probable effect would be an increased frequency of the attacks of epilepsy, with...