Westfall v. Westfall

BROWN, J.

We have set down the facts at some length in the statement for the reason that this case is out of the ordinary. The contradictory statements of plaintiff and defendant raise questions of veracity. Whom shall we believe? It has been written that:

_ “There is no standard by which the weight of conflicting evidence can be ascertained.”

If the controlling facts in the case at bar are fully comprehended, the application of the law presents no serious problem. Plaintiff charges his wife with pregnancy by a third person at marriage, and with concealment. Defendant admits pregnancy, but denies concealment. Plaintiff was a man 26 years old at the time of his marriage. The girl was 17 and a delinquent child under the statute of this state, because of the fact that when a school girl she morally slipped, by having improper relations with one P. Ditmar, a young man of the neighborhood. She, likewise, had had intercourse with the plaintiff. She says, and it is possible, that conception took place without her knowledge. Nature delayed in evidencing its warning until October, when her menses ceased. Expert medical testimony of record corroborates the probability of the girl’s story. Prior to the appearance of symptoms of pregnancy, she kept company with plaintiff, and had sexual commerce with him. Some time after the passing of the month of October, plaintiff proposed marriage. Defendant advised him of her fears as to her condition. Plaintiff insisted that he did not *233 believe tbe cbild could be Ditmar’s, who she admitted bad seduced ber, on account of ber menses not ceasing prior to October. At any rate be knew, or bad good reason to know, that tbe girl whom he married was pregnant with cbild. By bis own act of carnal knowledge of that girl who was at that time 17, Westfall committed tbe crime of contributing to tbe delinquency of a minor, in flagrant violation of the provisions of our Criminal Code, Section 2150, Or. L. He also committed a crime by attempting to procure an abortion to be performed upon ber. Beyond all question be sought tbe services of a physician for tbe purpose of killing an unborn babe. Tbe physician swore to tbe fact, plaintiff’s wife testified to it, and be admitted it. However, Westfall seeks to explain away that damaging circumstance by stating, in substance, that be wished tbe criminal operation performed, not upon tbe body of bis betrothed, Elma Wood, but upon the body of “a feeble-minded female relative.” Tbe physician further testified that tbe plaintiff gave no names, but led him to understand that—

“He was in trouble with some girl; * * that they thought a lot of each other, * * but were not ready to get married.”

That girl was Elma Wood, and not bis relative.

1. Based upon tbe evidence of record and tbe motives that actuated Harvey Westfall, tbe plaintiff, we are convinced that tbe proof fairly establishes tbe fact that be knew, as tbe defendant says be knew, that sbe was carrying a cbild in ber womb, and that be went deliberately to tbe physician with the premeditated purpose of having him to take tbe life of that unborn babe. This is but another one of tbe ten thousand thousand instances wherein guilt, in at *234 tempting to conceal guilt, has supplied the evidence for its own condemnation.

They married in January, 1920, instead of the following spring, on account of the fact that the defendant was pregnant. The circumstances show that it is reasonably certain that neither the plaintiff nor the defendant expected the child at the time of its birth. No preparations whatever had been made for the arrival of the baby. They looked forward to a later date, when they would be living in their own home. The plaintiff perhaps thought it was his child; the defendant hoped so. Under our view of the law, in light of the facts in the instant case, whatever the defendant or plaintiff might have thought about the matter, he is effectually barred from having his marriage contract annulled.

2. Plaintiff’s ground of suit is alleged fraud, and is based upon the following provision of our Code:

“When either party to a marriage shall be incapable of making such contract or assenting thereto, for want of legal age or sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage shall be void from the time it is so declared by the decree of a court having jurisdiction thereof.” Section 503, Or. L.

—and a similar statute denominated Section 9722, Or. L.

The facts in this case bring the plaintiff, Harvey Westfall, squarely within a well-established principle of law that bars his suit. He is precluded from obtaining a divorce from his wife by a general rule of law that sexual commerce between a man and a woman before marriage bars a suit for divorce on the ground of fraud by the woman on account of concealment of her pregnancy, regardless of the paternity of the off *235 spring: 1 Bishop on Marriage, Divorce and Separation, § 498; 14 Cyc., pp. 595, 596; 19 Am. & Eng. Ency. of Law (2 ed.), 1185; 18 R. C. L., p. 414, § 37; 19 C. J. 39, 40. To the same effect is a note by Freeman, 79 Am. St. Rep., p. 372, containing a collection of cases holding when antenuptial pregnancy does, and when it does not, constitute grounds of fraud sufficient to dissolve the marriage contract:

“Antenuptial pregnancy by another man is, if concealed from the husband, such a fraud upon him as will justify an annulment of the marriage: Sinclair v. Sinclair, 57 N. J. Eq. 222 ( 40 Atl. 679 ); Carris v. Carris, 24 N. J. Eq. 516; Donovan v. Donovan, 9 Allen, 140 ; Reynolds v. Reynolds, 3 Allen, 605 ; Harrison v. Harrison, 94 Mich. 559 ( 34 Am. St. Rep. 364 , 54 N. W. 275 ); * * But, if he, himself, has had improper relations with the wife before marriage, he cannot have the marriage annulled on account of his wife’s false representations that she was pregnant by him: Tait v. Tait, 23 N. Y. Supp. 597 ( 3 Misc Rep. 218 ); or by reason of the fact that she was pregnant by another man, although the husband was ignorant of her condition at the time of the marriage: Seilheimer v. Seilheimer, 40 N. J. Eq. 412 ( 2 Atl. 376 ); States v. States, 37 N. J. Eq. 195; Foss v. Foss, 12 Allen, 26 ; Crehore v. Crehore, 97 Mass. 330 ( 93 Am. Dec. 98 ); Carris v. Carris, 24 N. J. Eq. 516.”

To the proposition sustaining the general rule, as stated, also see the cases of Franke v. Franke, 3 Cal. Unrep. 656 ( 31 Pac. 571 , 18 L. R. A. 375); Scroggins v. Scroggins, 14 N. C. 535 ; Long v. Long, 77 N. C. 304 ( 24 Am. Rep. 449 ); Hoffman v. Hoffman, 30 Pa. 417 ; McCulloch v. McCulloch, 69 Tex. 682 ( 7 S. W. 593 , 5 Am. St. Rep. 96 ). To like effect is a note by the editors of Ann. Cas. 1914C, 1291, and a collection of the cases bearing upon the subject.

Some authorities recognize exceptions to the general rule. As illustrative of such exceptions, we take *236 this statement from Bishop, on Marriage, Divorce and Separation, at Section 501:

“Thus, where at the time of the solemnization of a marriage between two white persons the child had actually been horn and the woman knew it to be a mulatto, yet swore it upon the white man, * # to avoid which process, under the belief of being the father, he consented to marry her, the marriage was set aside as procured by fraud.”

As further illustrating the exceptions are opinions based upon statutory provisions providing that concealed pregnancy of a woman by another is ground for divorce. Virginia, Maryland and Iowa, and possibly other states, have such statutory provisions. Section 3175, Iowa Code, provides:

“The husband may obtain a divorce from the wife * * when the wife at the time of the marriage was pregnant by another than the husband, of which he had no knowledge, unless such husband had an illegitimate child or children then living, which at the time of the marriage was unknown to the wife.”

A valuable case exemplifying the exception provided by the statutory provision is Wallace v. Wallace, 137 Iowa, 37 ( 114 N. W. 527 , 126 Am. St. Rep. 253 , 15 Ann. Cas. 761, 14 L. R. A. (N. S.) 544. In that case, based upon the statute, the court held that antenuptial sexual intercourse between husband and wife would not prevent a divorce on the ground of her pregnancy by another at the time of marriage, where he had been wrongfully induced by the wife to believe that her condition was the result of his intercourse. However, a divorce was denied in consequence of the presumption that a child born at any time during wedlock is legitimate, together with the rule of evidence relating to paternity, providing that neither the declarations nor the testimony of either spouse is competent on *237 the question of access or nonaccess of one to the other.

3. A licentious man cannot call upon a court of equity as a guarantor of the paternity of a child conceived in the lewdness of antenuptial intercourse. Here we have a case where the plaintiff, 26 years of age, has sexual intercourse with a delinquent girl of 17, later weds her, and four weeks after marriage a child is bom. He then comes into a court of conscience and alleges fraud by reason of concealment of her pregnancy from him, and seeks the dissolution of the marriage contract. Marriage shall not be made a mockery, to shield the licentious from acts penalized by law, and then annulled when it has served his purpose. The union of man and woman by marriage constitutes the foundation of the home. The home is the bulwark of human society, the sure support of law, order and good government. The granting of a decree of divorce dissolving the marriage contract is a grave judicial act. The court should see that in such cases there is “neither levity nor collusion.” However, the state expresses its public policy by statutory enactments, and provides for the dissolution of the marriage contract for given reasons. This court will not undertake to enlarge upon the statutory grounds.

4. An eminent authority has written that:

“Marriage being the source of population, of education, of domestic felicity, — being the all in all without which the state could not exist, — it is the very highest public interest. Prima facie, therefore, each particular marriage is beneficial to the public; each divorce, prejudicial.”

Hence, a divorce “being prima facie to the public detriment, it is suffered only in those special cases in which it is decreed by proper authority. ’ ’ 1 Bishop on Marriage, Divorce and Separation, §§ 38, 39.

*238

5. As we deduce the facts from the testimony in this case, the statute and judicial precedent require that a decree of divorce be denied to the plaintiff.

By statutory enactment it is a presumption of law, although disputable, “that a child born in lawful-wedlock, there being no divorce from bed or board, is legitimate”: Section 799, subd. 32, Or. L. This presumption is not overcome by the admission of the wife that another has had sexual intercourse with her: Wallace v. Wallace, 137 Iowa, 37 ( 114 N. W. 527 , 126 Am. St. Rep. 253 , 15 Ann. Cas. 761, 14 L. R. A. (N. S.) 544).

It is a well-established principle of law that:

“Bom in wedlock, the presumption of - the legitimacy of the child obtains, even though it happens so soon after marriage as to render it certain that it was the result of coition prior thereto. * * In other words, antenuptial conception does not weaken the presumption of legitimacy arising from postnuptial birth”: Wallace v. Wallace, 137 Iowa, 37 ( 114 N. W. 527 , 126 Am. St. Rep. 253 , 15 Ann. Cas. 761, 14 L. R. A. (N. S.) 544), and authorities therein noted; 8 Ency. of Ev., p. 106, and authorities cited in note 6.

“That the issue of a wife cohabiting with her husband, who is not impotent is legitimate,” is made a conclusive presumption by our Code, Section 798, paragraph 6. "While there is respectable authority to the contrary, it is held by the great weight of judicial precedents that the testimony by either the wife or the husband, of the nonaccess of the husband, is not competent evidence to overcome the presumption of legitimacy. The rule is thus stated by Bishop:

“Though husband and wife are competent witnesses to their marriage, yet on ‘the broad ground of general public policy affecting the children bom during the marriage, as well as the parties themselves,’ the courts, on a question of legitimacy, will not permit *239 them, or one of them after the death of the other, to testify whether or not they had carnal access to each other during the period within which the child must have been begotten. And this rule applies as well to an alleged intercourse before marriage, where the birth was after, as to the ordinary case.”

It is said by Jones, in his valuable work on Evidence :

“It is well settled on grounds of public policy, affecting the children born during the marriage, as well as the parties themselves, that the presumption of legitimacy, as to children born in lawful wedlock cannot be rebutted by the testimony of the husband or the wife to the effect that sexual intercourse has or has not taken place between them; nor are the declarations of such husband or wife competent as bearing on the question. The rule not only excludes direct testimony concerning such intercourse, but all testimony of such husband or wife which has a tendency to prove or disprove legitimacy; for example, it was held incompetent to ask the husband, for the purpose of proving nonaccess, whether at a given time he did not live a hundred miles away from his wife and whether at that time he was not cohabiting with another person. Testimony of either party even tending to show nonintercourse, or of any fact from which nonaecess may be inferred, or of any collateral facts connected with the main fact, should be scrupulously excluded, and if the illegitimacy is to be proved, it must be proved by other testimony.”

From Greenleaf, we carve the statement that:

“The husband and wife are alike incompetent witnesses to prove the fact of nonaccess.” 2 Greenleaf on Evidence (16 ed.), §151; 3 Am. & Eng. Ency. of Law (2 ed.), 879.

To the same effect are: Estate of Mills, 137 Cal. 298 ( 70 Pac. 91 , 92 Am. St. Rep. 175 ); Shuman v. Shuman, 83 Wis. 250 ( 53 N. W. 455 ); Rabeke v. *240 Baer, 115 Mich. 328 ( 73 N. W. 242 , 69 Am. St. Rep. 567 , and note).

6. But, independent of the aid of presumptive evidence with which the law clothes the defendant in the case at bar, the plaintiff has failed to establish his cause, and this case must be affirmed. Affirmed.

Johns, McBride and Harris, JJ., concur.