Westfall v. Westfall

Decision Date19 April 1921
Citation197 P. 271,100 Or. 224
PartiesWESTFALL v. WESTFALL.
CourtOregon Supreme Court

Department 1.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Suit by Harvey A. Westfall against Florence Elma Westfall to annul a marriage on the ground of fraud, and from a decree dismissing complaint, plaintiff appeals. Affirmed.

In this proceeding the plaintiff seeks relief in a court of equity for the annulment of the marriage contract with defendant, on the ground of fraud. He complains that at the time of marriage defendant was pregnant with child, which fact she concealed. Briefly, the facts are:

Harvey A. Westfall, of the age of 26 years, plaintiff and appellant on the 13th day of January, 1920, married Florence Elma Wood 17 years of age. A girl babe was born to the wife on February 12, 1920. Plaintiff cared for her for eight days thereafter and she was then taken to her father's home. Her husband forthwith instituted divorce proceedings in the circuit court of the state of Oregon in and for Yamhill county.

Plaintiff alleges, among other things, that "plaintiff and defendant, with the consent of the defendant's mother were legally married to each other; that in May, 1919, the defendant became pregnant with child by one P. Ditmar, and was pregnant with child at the time of the engagement and marriage of the plaintiff and defendant; that plaintiff was entirely ignorant of such fact, and the defendant fraudulently concealed the fact from plaintiff, but led him to believe that she was a girl of good character; that thereafter, and on the 12th day of February, 1920, the defendant gave birth to a fully developed girl baby; that after the birth of the child, defendant admitted to plaintiff that one P. Ditmar was its father, and that she had concealed the fact of her pregnancy from the plaintiff."

The defendant, answering, "admits that she was pregnant with child at the time of the engagement and marriage of the plaintiff and defendant," but she alleges "that the plaintiff had full and complete knowledge of all the facts and circumstances connected with said pregnant condition of the defendant prior to their marriage."

The record shows that after they were married they stayed at her mother's abode for a few nights, but thereafter lived at his father's home with his father's family, consisting of his mother, two sisters and a brother; that the wife became ill on the night of February 12, 1920; that a doctor was called; that on his arrival the doctor made an examination, and told plaintiff a child was about to be born; that no preparation had been made by way of clothing, or otherwise, for the advent of the child.

Plaintiff and defendant testified that they commenced keeping company in September, 1919, and that he visited her frequently until the time of their marriage. Plaintiff further testified that after marriage he slept continuously with his wife, and had sexual intercourse with her until within a week prior to th birth of the baby, and entertained no suspicion of her pregnancy. He claimed that his first knowledge of her pregnancy by Ditmar was an hour after the child was born.

Plaintiff's mother and sister testified that about one hour after the birth of the baby the defendant "begged him (plaintiff) to knock her [defendant] in the head for deceiving him"; that after hearing this they promptly went on their way to rest. Defendant stoutly denies making any such statement, and says that she was under the influence of chloroform, and remembered nothing until about 6 o'clock a. m.

Defendant testified that her seventeenth birthday was in July, 1919; that she commenced keeping company with plaintiff in September thereafter; that he first took her to the State Fair, afterwards to McMinnville; that they had sexual intercourse prior to her promise to marry him; that he visited her frequently; that he proposed marriage; that prior to their marriage she told him of her relations with Ditmar, which occurred in the month of May, 1919, when she was a school girl of the age of 16 years; that she told the plaintiff of her delinquency because she thought he should know. She testified:

"I told him I thought I was pregnant, and told him of my relations with Ditmar. He said it [pregnancy] would have showed up if it had been Ditmar's. It had been too long since I had been going with Ditmar.

"Q. What, if any, reason did you give him that you thought you were pregnant from Ditmar at that time? A. I thought if I was pregnant with Ditmar I didnt' think he would want me.

"Q. What reason, if any, did you give him why you thought you were pregnant? A. Because I had had no menses since October.

"Q. Did you tell him that? A. Yes.

"Q. What did he say? A. He said if it had been Ditmar's it would have showed up before that.

"Q. What else before you promised him * * * did he make you promise? A. That I would be true to him, to Harvey.

"Q. You couldn't state, if you know, how many times approximately your husband, Harvey Westfall, had sexual intercourse with you prior to your marriage? A. Several.

"Q. Now, why were you married when you were? A. Because I thought I was pregnant from him."

She testified that plaintiff said it better to wait until spring, while she believed that the sooner they were married the better on account of her condition, but thought her pregnancy was due to Harvey. She further testified that before the child was born she told her husband that if it was a nine-months' baby it was Percy Ditmar's; that after the baby came he put his arms around her, kissed her, and, as is admitted by all, slept with her during the eight days that she remained in the house of his father after the birth of the child. She further testified that prior to their marriage plaintiff made a visit to Dr. Wood of McMinnville for the purpose of having an abortion committed upon her body; that plaintiff told her upon his return that he "went to see Old Doc Wood," who said "it would be a penitentiary offense for both of them, and he didn't do that kind of work;" that she didn't have to change her dressing in any way prior to the birth of the child on account of being pregnant, and that she was "able to work and move about in the same manner that she was prior to that time"; that she wore a corset but did not lace it, and had no symptoms of pregnancy prior to October; also that she did not expect the child before June.

Dr. J. T. Wood, a physician of McMinnville, testified, upon the part of defendant, that the plaintiff came to him in November or December, 1919, and that:

"He told me he was in trouble with some girl; he didn't tell me what girl or anything about it. He said it was a girl, and that they thought a lot of each other, and that sort of thing, and were not ready to get married, and wanted to know if I could help them out of such a case.

"Q. What did you tell him? A. I told him I couldn't do that; I didn't think it was the best thing, even if he had it done somewhere else. I told him the best thing to do was to marry the girl. If he liked the girl and was satisfied he was responsible for her condition, the best thing was to go and marry her. * * *

"The Court: Do you feel positive now in your remembrance of this thing that he mentioned anything about marriage? A. Now I will put it this way, Judge, I think that he mentioned they expected to get married; anyway, I told him that was the best thing to do.

"The Court: You are positive of that? A. Oh, I know that. Toward the end of the thing he said, 'I suppose your advice is best. * * *' I wouldn't positively swear he said first he intended to marry, or it was after I suggested he should marry her, but he did say he intended to marry the girl, but was not yet ready to marry her."

Defendant's mother testified that after the birth of the child she said to plaintiff:

"Harvey, did you know about this?" and he said: "Yes; but I didn't think it would be quite so soon."

"Q. What were you speaking about when you said, 'Did you know this?' A. I was speaking about the baby."

Plaintiff admitted that he called upon Dr. Wood for the purpose of arranging for an operation, and testified that the doctor refused, saying that it would be a penitentiary offense for each. He said, however, that it was not for the purpose of having a criminal operation performed upon the defendant, but upon a female relative.

"Q. What girl was it for? A. For a near relative of my family that is now in the Feeble-Minded Home."

Pregnancy occurred in May and defendant testified that she ceased menstruating in October. The lower court thought this fact important, and admitted expert medical evidence concerning the likelihood of her story. Plaintiff's physician, being recalled at the request of the court, testified:

"There are lots of women who will be five months pregnant and not realize that they are pregnant."

He also testified that:

"A few women will menstruate throughout the period occasionally; that is exceptional; and frequently they will menstruate for two or three months, and occasionally for five or six months through the period."

Among the facts found by the court are the following:

"That the plaintiff is of the age of 26 years, and the defendant of the age of 17 years.

"That heretofore, to wit, on the 15th day of January, 1920, at McMinnville, Yamhill county, Or., the plaintiff and the defendant, with the consent of the defendant's mother were lawfully married to each other, and ever since have been, and now are, lawful husband and wife.

"That the defendant was and is not guilty of any fraud, fraudulent representation, fraudulent concealment, or deceit practiced upon the plaintiff, and that plaintiff's engagement and marriage to the defendant was made and executed by the...

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15 cases
  • In re S.D.S.
    • United States
    • Oregon Supreme Court
    • 28 Noviembre 2023
    ...that the husband could not have fathered the child because he was infertile or lacked sexual access to his wife. See Westfall v. Westfall , 100 Or 224, 239, 197 P 271 (1921) ("It is well settled on grounds of public policy, affecting the children born during the marriage, * * * that the pre......
  • Clark v. State
    • United States
    • Maryland Court of Appeals
    • 14 Noviembre 1955
    ...v. Herman, 35 N.C. 502; Rhyne v. Hoffman, 59 N.C. 335; State v. Bowman, 230 N.C. 203, 52 S.E.2d 345. Oregon: Westfall v. Westfall, 100 Or. 224, 197 P. 271, 13 A.L.R. 1428. Pennsylvania: Dennison v. Page, 29 Pa. 420, 72 Am.Dec. 644; Tioga County v. South Creek Township, 75 Pa. 433. South Car......
  • Craven v. Selway
    • United States
    • Iowa Supreme Court
    • 14 Febrero 1933
    ...App. 693, 165 N. E. 526;State v. Reed, 107 W. Va. 563, 149 S. E. 669;Scott v. State, 173 Ark. 625, 292 S. W. 979;Westfall v. Westfall, 100 Or. 224, 197 P. 271, 13 A. L. R. 1428;West v. Redmond, 171 N. C. 742, 88 S. E. 341;Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A. 1916B, 1052, ......
  • Parsons v. Parsons
    • United States
    • Oregon Supreme Court
    • 26 Febrero 1953
    ...with her husband, who is not impotent, is legitimate. Other difficulties are presented by our decisions in Westfall v. Westfall, 100 Or. 224, 197 P. 271, 13 A.L.R. 1428, and In re Rowe's Estate, 172 Or. 293, 141 P.2d 832, which hold that neither husband nor wife is competent to testify to n......
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