Witt v. Heyen

• Decision Date: 08 December 1923
• Docket Number: 24,797
• Citation: 114 Kan. 869,221 P. 262
• Parties: HANNA WITT, Appellee, v. JOHN C. HEYEN, Appellant
• Court: Kansas Supreme Court

221 P. 262

114 Kan. 869

HANNA WITT, Appellee, v. JOHN C. HEYEN, Appellant

No. 24,797

Supreme Court of Kansas

December 8, 1923

Decided July, 1923.

Appeal from Stafford district court; DANIEL A. BANTA, judge.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BREACH OF PROMISE OF MARRIAGE--Statute Prohibiting Marriage of Certain Persons Valid Exercise of Legislative Power. Section 6155 of the General Statutes of 1915, prohibiting the marriage of a woman, whose parent was insane at the time of her birth, before she reaches the age of forty-five years, is a valid exercise of legislative power.

2. SAME--Prohibited Marriages--No Basis for Damages for Breach of Promise of Marriage. The breach of an agreement to marry between parties whose marriage is prohibited by statute, will not form the basis of an action for damages.

3. SAME--Evidence--No Consent to Breach of Promise. Evidence examined and held to support a finding that plaintiff had not consented for defendant to breach the promise of marriage.

4. SAME--Taint of Insanity in Plaintiff May Be Shown in Mitigation of Damages. In an action for damages for breach of marriage promise, undesirable traits or objectionable characteristics of plaintiffs, including taint of insanity if pleaded by defendant, may be shown in mitigation of damages.

5. SAME--Lunacy Inquest--Verdict and Findings of Jury Competent Evidence as to Insanity of Plaintiff's Father. In a lunacy inquest, under section 3681 of the General Statutes of 1889, the jury was required to include in their verdict the substantial facts shown by the evidence, a finding of the duration of the disease prior to the inquest, and a statement of all facts bearing on the case known to the physician juror.

6. SAME--Prima Facie Evidence of Insanity. In such a case, where the jury find the subject to be insane, and that the disease had existed from a prior date, the finding is conclusive evidence of insanity at the date of the inquest, and prima facie evidence of insanity during the prior period overreached by the findings.

7. SAME--Binding Effect of Lunacy Inquest. A lunacy inquest, under the statute mentioned, is a proceeding on the part of the state, in its capacity as parens patriae, for the welfare of its citizens, and is binding alike upon all persons.

Paul R. Nagle, of St. John, for the appellant.

Robert Garvin, Evart Garvin, and Ray H. Beals, all of St. John, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for breach of promise of marriage. There was a jury trial, judgment for plaintiff, and the defendant appealed. The petition contained the necessary allegations for such an action. The answer admitted the engagement but averred (a) that the promise of marriage had been broken by mutual consent, and (b) that after the promise of marriage defendant learned there was insanity in plaintiff's family, that he inquired of plaintiff about her father, but she would tell nothing and concealed from him the family Bible, or other record, containing her family history; that from other sources he learned that her father was insane, as was also her father's half-sister; that her father had died April 8, 1907, of pulmonary tuberculosis, at one of the state hospitals for the insane, and pleaded that plaintiff's father was adjudged insane in the probate court of Rush county, November 11, 1895, and by reason thereof he became obsessed with the idea that, should he marry plaintiff, their offspring would become insane, or would be imbeciles, or consumptives, and being fearful that the offspring would inherit the taint of plaintiff's family, and knowing that both insanity and consumption are hereditary, he could not bring himself to carry out his promise, and averred that because of the reasons which prompted him he should not be required to respond in damages. The verified reply admitted that when plaintiff was about nine months old her father was adjudged insane, was committed to the state hospital for the insane and later died there, denied that the insanity was of a hereditary nature and denied other allegations of the answer.

As to the first defense pleaded, that the promise of marriage had been broken by mutual consent, the jury in answer to a special question found against the defendant. On this branch of the case, the defendant relied upon certain letters written by plaintiff, in which she said: "So you think I have another 'beau.' Well, I certainly have not; did not intend to, unless you say so. Suppose you would rather have some one else to talk to, do not blame you for that. I had not intended to go with any one else and more I would not break the promise that I once gave you unless I have to. . . . If you think I am going with some one else you are mistaken for I am not, and if you don't want to keep company with me let me know and I will return the things you gave me. It was not my intention to quit, but if you think so then it probably must be, but just as you say for my feelings were hurt . . ." And in another letter: ". . . . So you think I don't love you, I do, just as much as I always did, if I didn't I wouldn't told you so Xmas, but if you think I don't and would rather be alone; don't let me hinder you, for I don't want to cause hard feeling or be in any one's way." Appellant asks us to construe these letters as expressing a consent on her part to the breaking of the engagement. We think they are not susceptible of that interpretation.

In Nightingale v. Leith, 120 Me. 501, 115 A. 265, a letter, written by plaintiff to defendant after he had asked for the return of the engagement ring, contained this sentence: "But as I see that you don't care for me and want to call it off you may. I don't want to thrust myself on any one" (p. 504), was held not to show a rescission by mutual consent of the contract to marry. In view of some parol testimony the trial court in this case left the question to the jury. Their special finding against the defendant is well supported by the evidence and is final on that question.

The questions arising out of the second defense are not so easily disposed of. Sections 6155 and 6157 of the General Statutes of 1915, as amended by chapter 230 of the Laws of 1919, read as follows:

"No woman under the age of forty-five years, or man of any age, except he marry a woman over the age of forty-five years, either of whom is epileptic, imbecile, feeble-minded or afflicted with insanity, shall hereafter intermarry or marry any other person within this state. It shall be unlawful for any person to marry any such feeble-minded, imbecile or epileptic person, or anyone afflicted with insanity. Children born after a parent was insane shall not marry except under the above-named conditions, unless the parent or parents of such children shall have been discharged from the State Hospital for insane or any other legally constituted institution for the treatment of the insane more than nine months before the birth of the child, as cured and remained cured for a period of twenty years after such discharge."

"No officer authorized by law to issue marriage licenses in this state shall hereafter issue such a license to any persons, either of whom is afflicted with any of the diseases mentioned in section 1 of this act, knowing them to be so afflicted, unless the female party to such marriage is over the age of forty-five years, but said officer shall in all cases ask of the party applying for a marriage license and require him to make answer thereto in writing under oath to the following question: Have you or has the person you are expecting to marry ever been afflicted with epilepsy, imbecility, feeble-mindedness, or insanity?"

Plaintiff was born February 16, 1895, and was about twenty-seven years of age at the time of the trial; hence, the above statute applies to her, if her father was insane at the time of her birth. Defendant's answer must be construed favorably to him to say that he plead a defense under this statute, but the trial court did not base his ruling upon the lack of the sufficiency of the answer and perhaps we should not do so; for, it was within the discretion of the court to permit an amendment to the answer, even though justice to the other side would require a continuance. The answer did not specifically plead that plaintiff's father was insane at the time of her birth, but it did plead the adjudication of insanity of plaintiff's father by the probate court of Rush county, on November 11, 1895, which adjudication tended to show that fact. At the trial defendant offered in evidence, from the records of the probate court of Rush county upon the inquest of the insanity of plaintiff's father, John Witt, the following: The order of the court of November 9, 1895, reciting that an information had been filed alleging that John Witt was a person of unsound mind and incapable of managing his affairs, and praying an inquiry; it set the hearing for November 11, directed the sheriff to bring John Witt into court, and summoned six jurors, one of whom was a physician. The journal of the court of November 11, 1895, of the hearing, which recited the presence of John Witt; that the jury was chosen, witnesses called, evidence introduced, that the jury returned the following verdict:

"We the undersigned jurors, in the case of John Witt insane having heard the evidence in the case are satisfied that said John Witt is insane and is a fit person to be sent to the State Insane Asylum; that he is resident of the State of Kansas, and Rush County, that his age is 40 years; that the disease is of two years duration, that the cause is supposed to be melancholia with him hereditary, that he is not subject to epilepsy, that he does not manifest homicidal tendencies." (Signed by...