Smith v. Smith

• Decision Date: 07 March 1921
• Parties: OKLE B. SMITH, Respondent, v. LeROY SMITH, Appellant
• Court: Kansas Court of Appeals

229 S.W. 398

206 Mo.App. 646

OKLE B. SMITH, Respondent, v. LeROY SMITH, Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1921

Appeal from the Circuit Court of Jackson County.--Hon. Daniel E Bird, Judge.

Reversed.

L. O Carter for respondent.

C. R Leslie for appellant.

OPINION

ARNOLD, J.

This is a suit for divorce. The parties were married at Victoria, B. C., May 5, 1914, and lived together as husband and wife until on or about March 16, 1918, when they separated and have not lived together since. Suit was filed in the circuit court of Jackson County at Independence, Missouri, July 7, 1919, and was transferred to Kansas City, tried in division No. 8 of the circuit court November 25, 1919, taken under advisement by the court and decision rendered December, 16, 1919, granting plaintiff a decree of divorce. Defendant appealed.

The petition (omitting all formal matters) alleges that "at the time the marriage between plaintiff and defendant was contracted, as aforesaid, defendant was and still is impotent." Plaintiff further asked that her maiden name be restored.

Defendant, in his answer, admits the marriage as alleged in the petition and denies each and every other allegation therein contained. And for further defense the answer charges plaintiff with unfaithfulness to her marriage vows made with defendant and specifically sets out alleged acts of unfaithfulness of plaintiff. The amended reply is a general denial of the allegations of unfaithfulness set up in defendant's answer and contains certain charges against defendant, among them "that defendant employed would-be-sleuths to shadow and observe her daily acts and conduct." These charges are clearly new matter which may not be set up in a reply.

"A reply cannot be used in aid of a petition by introducing for the first time a new cause of action, or an additional cause of action, nor to engraft on the petition a material allegation omitted therefrom." [Rhodes v. Land & Lumber Co., 105 Mo.App. 279, 79 S.W. 1145; Mathieson v. Railroad, 219 Mo. 542, 118 S.W. 9; Platt v. Parker-Washington, etc. Co., 161 Mo.App. 663, 669, 144 S.W. 143.]

Plaintiff's case is bottomed upon the allegation of impotency and that is the only question before us for consideration. 14 Cyc. 596-597 defines impotency as "an incurable, incapacity that admits neither copulation nor procreation: the copulation contemplated being copula vera , and not partial, imperfect, or unnatural. It must be incurable, and render complete sexual intercourse practically impossible. [Griffeth v. Griffeth, 162 Ill. 368, 44 N.E. 820; Kempf v. Kempf, 34 Mo. 211.] Thus absence of conceptive power or barrenness does not constitute impotency if there is complete power of copulation. [Anonymous, 89 Ala. 291, 7 So. 100; Jorden v. Jorden, 93 111 App. 633; Payne v. Payne, 46 Minn. 467, 49 N.W. 230.] Physical in capacity as a statutory ground for divorce is generally construed to mean impotency." [Anonymous, 89 Ala. supra.]

This phase of the matter is fully and clearly stated in Bishop on Marriage, Divorce & Separation, Vol. 1, section 758, as follows: "The doctrine of this chapter is, that, since marriage is a sexual relation, having in view the propagation of the species, a man or woman so imperfect in the sexual organism as to be perpetually and incurably incapable of the connection that precedes parentage, cannot enter into indissoluble matrimony with another having no notice of the incapacity. Yet as marriage continues or is properly contracted after the years of fruitfulness have gone by, and as in every aspect mere sterility could not usually be made a matrimonial impediment, the law's test is simply the ability or inability for copulation, not fruitfulness."

And at section 797 of the same volume, it is said: "The ability to become a parent is never an essential element in marriage.--not that it is intrinsically unimportant, but practically marriage may well subsist without it. And to make a deception as to this the foundation of a suit for nullity would lead to offensive and demoralizing inquiries in the courts, with no compensatory advantages. So the question is made to turn simply on the ability for the sexual connection."

In Rodgers on Domestic Relations, sec. 143, p. 102 we find "By the word 'impotency,' as used in the law books, is meant something more than a mere lack of power of procreation or even the full physical ability of sexual connection. As is said by the Supreme Court of Minnesota, in a late case, 'it means want of potentia copulandi, and not...