Rosander v. Rosander

• Court: Kansas Supreme Court
• Writing for the Court: WERTZ; HARVEY
• Citation: Rosander v. Rosander, 276 P.2d 338, 177 Kan. 45 (Kan. 1954)
• Decision Date: 13 November 1954
• Docket Number: No. 39436,39436
• Parties: Mable ROSANDER, Appellant, v. Carroll G. ROSANDER, Appellee.

Page 338

276 P.2d 338

177 Kan. 45

Mable ROSANDER, Appellant, v. Carroll G. ROSANDER, Appellee.

No. 39436.

Supreme Court of Kansas.

Nov. 13, 1954

Syllabus by the Court.

1. G.S.1949, 60-1509, prohibits the granting of a divorce upon the uncorroborated testimony of either husband or wife, or both of them.

2. Under G.S.1949, 23-120, an epileptic within the age limits therein provided is forbidden to marry.

3. Under G.S.1949, 23-120, a marriage between an epileptic and another person is not void where the statute merely forbids it under penalty of imprisonment.

4. One induced by fraudulent concealment to marry an epileptic, forbidden by statute to marry, is entitled to a divorce on the ground of fraudulent contract. G.S.1953 Supp. 60-1501 (Seventh).

5. A fraud which makes the contract of marriage fraudulent is a fraud in law and upon the law.

6. Concealment of epilepsy is a fraud within the meaning of the statutes allowing divorce for fraudulent contract of marriage, when the statute forbids an epileptic to marry under penalty of imprisonment.

7. Proof of fraud is upon the party asserting it.

8. In an action for divorce upon the ground of fraudulent contract, for the asserted reason defendant was an epileptic at the time of the marriage, proof that the defendant was an epileptic subsequent to the time of such marriage is not, in the absence of a showing of fraud on the part of the afflicted party in concealing the epileptic condition, sufficient to warrant a decree of divorce.

J. R. Rhoades, McPherson, argued the cause, and George R. Lehmberg, McPherson, was on the briefs for appellant.

E. W. Jernberg, Lindsborg, argued the cause, and was on the briefs for appellee.

WERTZ, Justice.

This was an action for divorce instituted by the wife. Defendant's demurrer to the plaintiff's evidence was sustained, and from that order she appeals.

Plaintiff sought a divorce on the grounds of fraudulent contract, gross neglect of duty and extreme cruelty. The defendant in his answer denied the charges.

The facts disclosed by plaintiff's evidence were, in substance, as follows: Plaintiff first met defendant in 1945, and after approximately one year of courtship they were married in June, 1946, the plaintiff then being twenty and the defendant twenty-five years of age. At the time of the trial, the parties were twenty-eight and thirty-two years of age, respectively. When defendant obtained the marriage license in June, 1946, he made an affidavit to the effect that he was not and had never been afflicted with epilepsy. G.S. 1949, 23-121. Shortly after their marriage, plaintiff discovered that her husband was suffering from a difficulty. She did not exactly know he had this difficulty at the time of their marriage, and there was nothing which caused her to believe there was anything particularly wrong with him. About three months after their marriage he had an attack and fainted. At that time she discovered he was taking medicine he had received from Chicago. These attacks occurred about once a month and his condition grew worse during the first year. He went to a chiropractor and was advised he had a vertebra out of place in his neck. The chiropractor gave him treatments and discontinued the use of the medicine. The situation continued to grow worse, and in 1950 they consulted a medical doctor at Lindsborg, who advised plaintiff that defendant was suffering from epileptic attacks, and he was taken to Kansas City. Prior to this time she thought he was just having fainting spells. After his return from Kansas City, he was again put on medicine which seemed to relieve him as he was not as bad after he came home. He continued, however, to have the attacks and would fall, but would not be in a convulsive state like he was before he went to the medical doctor. These attacks continued until she separated from him and started the divorce proceedings. Plaintiff's testimony further disclosed that she and defendant lived in a combination filling station and home. After the marriage, she worked in cafes and a grocery store until 1950, when she took over the responsibility of managing the filling station in addition to her household duties, and looking after defendant when his attacks occurred. In March, 1953, defendant entered into a partnership automobile salvage business. The following May it was terminated. It became necessary for defendant to borrow $300 to pay his indebtedness to his partner, which he did without consulting plaintiff. She stated one of the reasons she left defendant was because she did not want to pay this $300.

Dr. Murfitt testified that defendant had been his patient since February, 1950 and that his condition was that of an epileptic, and that persons in his condition would ordinarily have to seek self-employment, as most people would not hire them. He testified as to the medical expense and that it would be necessary for defendant to have future medical care. He also treated him for thrombophlebitis of his legs which caused swelling of the tissues, and for that purpose he needed hepo-hepin which was the reason for the high medical expense in 1950, that he was not entirely cured, and it would be necessary for him to be treated in the future.

Plaintiff's remaining evidence went to the value of the real and personal property of the parties.

Defendant demurred to the plaintiff's evidence on the ground it failed to establish a cause of action, which demurrer was sustained generally by the court.

It was defendant's contention that plaintiff's evidence was not corroborated by other evidence.

G.S.1949, 60-1509, provides:

'In all actions for divorce * * *, hereafter to be tried, the parties thereto, or either of them, shall be competent to testify upon all material matters involved in the controversy to the same extent as other witnesses might do: Provided, however, That nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or both of them.'

It is well settled in this state that there must be corroborated evidence of the testimony given by the complaining spouse as to the delinquencies of ...