Smith v. Smith
| Decision Date | 22 June 1898 |
| Citation | 171 Mass. 404,50 N.E. 933 |
| Parties | SMITH v. SMITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Burke, Marshall & Corbett, for petitioner.
This libel is brought under Pub.St. c. 145, § 11, the first part of which is as follows: "When the validity of a marriage is doubted, either party may file a libel for annulling such marriage, or when the validity of the marriage is denied or doubted by either party, the other party may file a libel for affirming the same." The omission of the words "for fraud or other cause," contained in Gen.St. c. 107, § 4 and in St.1855, c. 27, does not change the meaning of the provision. The statute assumes that there may be marriages which are legal in form, but invalid in fact. In terms, it confers jurisdiction upon the court, but, in reference to the law of marriage, it is merely declaratory.
The facts of the present case are peculiar. On the day of the marriage, soon after the ceremony, the libelant received information that the respondent was afflicted with a venereal disease called "syphilis." She communicated the information to her mother, who immediately charged him with being so afflicted. He denied the charge, but consented to an examination by a physician. An examination was made that disclosed the fact, which the presiding justice has found that he was constitutionally afflicted with syphilis, a contagious disease, with which the libelant would become infected in case of cohabitation, "thus seriously impairing her health, and involving consequences of the most grievous character." The judge also found "that the disease would be transmitted to any offspring which they might have; that, while it was not absolutely incurable, the chances of a cure being effected in the state in which the respondent was were very remote and doubtful." The libelant, on learning the libelee's condition, refused to live with him as his wife, and there has been no consummation of the marriage. The libelee, knowing his diseased condition induced the libelant to contract the marriage without informing her in regard to it. She supposed him to be a man in good health and of good habits, and, if she had known that he was suffering from such a disease, she would not have contracted the marriage.
The statute to which we have referred has several times been considered by this court. Reynolds v. Reynolds, 3 Allen, 605; Donovan v. Donovan, 9 Allen, 140; Foss v. Foss, 12 Allen, 26; Crehore v. Crehore, 97 Mass. 330. The fullest discussion of the law applicable to a case like this of which we have knowledge is in Reynolds v. Reynolds, ubi supra. In that case a marriage was declared void into which a man was induced to enter by confiding in the representations of the woman whom he took for his wife that she was chaste, when in fact she was with child by another man. It has since been held that, to maintain a petition in such a case, it is not necessary to introduce evidence of express representations, and that a petition cannot be granted if it appears that the petitioner had himself been guilty of criminal intercourse with the woman before the marriage. The precise point decided in Reynolds v. Reynolds has been adjudicated in other states, and in this country seems to be generally accepted law. Baker v. Baker, 13 Cal. 87; Carris v. Carris, 24 N.J.Eq. 516. See, also, Morris v. Morris, Wright, 630; Ritter v. Ritter, 5 Blackf. 81; Scott v. Shufeldt, 5 Paige, 43. The law in England is held otherwise. Moss v. Moss [1897] Prob. Div. 263. The opinion of the learned chief justice to which we have referred treats of the law in reference to ordinary contracts procured by fraud, and points out the distinction between contracts to marry or executory contracts of marriage and executed contracts of marriage. There is no reason why executory contracts of marriage should not be treated, in reference to the fraud of either party, like any other contracts. We think it is well settled that fraud of such a kind, in its essential elements, as would invalidate an ordinary contract, is a good defense to an action upon a contract to marry. Van Houten v. Morse, 162 Mass. 414, 38 N.E. 705. But, after a contract to marry has ripened into a marriage, different considerations affect the case. On grounds of public policy, the law seeks to make the marriage relation in every case as nearly permanent as possible without doing injustice. The difference between the relation of a man and woman affianced and their relation after marriage is more than the difference between those who have made an ordinary executory contract and the same persons after the contract is executed. At marriage there is a change of status which affects them and their posterity and the whole community. It is a change which, for important reasons, the law recognizes, and it inaugurates conditions and relations which the law takes under its protection. It is of such a nature that it cannot lightly be disregarded. The contracting parties take each other for better or for worse, and agree to abide the consequences of misinformation or mistake in regard to each other. Says Chief Justice Bigelow in Reynolds v. Reynolds: The decree of nullity was entered in that case, not merely because the libelant was deceived in regard to the supposed...
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