Central of Georgia Ry. Co. v. Cheney

• Decision Date: 27 June 1917
• Docket Number: 8407.
• Citation: 93 S.E. 42,20 Ga.App. 393
• Parties: CENTRAL OF GEORGIA RY. CO. v. CHENEY.
• Court: Georgia Court of Appeals

93 S.E. 42

20 Ga.App. 393

CENTRAL OF GEORGIA RY. CO. v. CHENEY.

No. 8407.

Court of Appeals of Georgia, First Division

June 27, 1917

Syllabus by the Court.

At common law the husband and wife are one person in law, and the wife's legal existence is suspended during the marriage and consolidated into that of the husband, the common-law rule as to the rights and liabilities of husband and wife is in force in Georgia, except where changed by the statute law (Heyman v. Heyman, 19 Ga.App. 630, 92 S.E. 25), and the Supreme Court, in construing the act of 1866 (Civ. Code 1910, § 2993), has held that it is "the settled law of this state that, ever since the act of 1866 where a husband and wife are living together, the husband is entitled to her earnings, unless he consents that she may receive them as her own" (Georgia Railroad Co. v Tice, 124 Ga. 459, 468, 52 S.E. 916, 920, 4 Ann.Cas 200). See, also, Lee v. Savannah Guano Co., 99 Ga 572, 27 S.E. 159, 59 Am.St.Rep. 243. The wife, however, is entitled to her earnings when her husband consents that she should receive the same. See Sams v. Thompson-Hiles Co., 110 Ga. 648, 36 S.E. 104; Roberts v Haines, 112 Ga. 842, 38 S.E. 109.

(a) In this case the wife, who brought the suit to recover back money which she alleged to be hers and to have been paid to the defendant by her in satisfaction of a claim held by it against her husband, not only showed by her undisputed testimony that the money was her individual and separate earnings, but she further testified that her husband had consented for her to have and retain whatever she could make by her individual efforts.

Though the plaintiff testified that the money paid out by her, which she sought to recover back, was deposited both in her name and in the name of her 16 year old boy, who was her husband's son by her, and that some part thereof, which she did not specify, was earned by her said son by selling papers, she further said that the entire sum (including the amount earned by her son, whatever it may have been) was her property. This evidence was not objected to, nor was the statement contradicted or questioned in any manner; and hence it must be considered as a statement of fact, and not merely as a conclusion of the witness. While earnings of a minor son would belong to the father in the absence of any surrender of his parental rights, we may conjecture either that the father had surrendered his claim against...