¶1Defendant amended his plea before trial by giving notice that:
¶2"Please to take notice: That under the general issue above pleaded, the defendant will give in evidence and insist in his defense that about four years ago, this defendant became, without any fault on his part, afflicted with an infectious and communicable disease, viz.: A cancerous growth on the inner side of his lower lip, which he has been unable to cure; that at times said cancerous growth gives forth a poisonous, infectious and communicable discharge, well calculated to infect the glands of his throat, intestines and other vital organs of his body which will ultimately, if not arrested, cause his death; that the discharge is well calculated to endanger the life and health of any individual that he might come in contact with.
¶3"That said plaintiff knew of this cancerous condition shortly after defendant became afflicted therewith; that it has been a matter of deep concern to the defendant and has been talked of between them regarding his condition."
¶4Upon the trial proof was given as to the character of the cancer on defendant's lip, and expert witnesses who had examined it testified that the discharge was infectious, that the tendency was to increase in area, and extend to other organs of the body, and while they could not say that cancer was hereditary they did say and gave examples where it had run in families for several generations.
¶5At the close of the proofs the court was requested by defendant's counsel to charge the jury, as follows:
¶6"That if you are satisfied by a preponderance of the evidence that these parties were engaged to be married and that defendant thereafter became afflicted with a cancerous growth on the inner side of the lower lip and that he is still suffering from such malady and that the disease is a malignant, dangerous and infectious one; that it is liable to spread to the glands of his throat, intestines and the other organs of his body then defendant would be justified in refusing to *124 marry the plaintiff, and she cannot recover in this case."
¶7It will be observed that in the notice under the plea defendant's malady is disclosed. It did not, however, allege that defendant refused to marry plaintiff because of this malady.
¶8Defendant was asked upon cross-examination:
¶9"Mr. Cummins: Do you now claim that the reason you did not marry Bessie Shepler was because of this trouble on your lip?
¶10"A. I do not."
¶11Had defendant's pleading alleged that he refrained from marrying plaintiff because of his malady and supported it by his own or other testimony we think the trial court would have been in error in refusing to give the foregoing request. Considering the condition of the proofs the request was properly denied. In view of the fact that the pleading made no such claim and defendant denied that he made such a claim, I am unable to see how the legal question discussed by Mr. Justice FELLOWS is involved in this controversy. Unless defendant himself made the defense of incapacity by reason of his malady, the jury could not be asked to so find. The testimony bearing on the existence and condition of the cancer was material only for the purposes indicated by the trial court.
¶12Excepting that part of the opinion of Mr. Justice FELLOWS bearing on the question of whether defendant's malady was a defense to the action, I concur in the result reached by him.