Cocroft v. Cocroft

• Decision Date: 02 September 1924
• Docket Number: (Nos. 4039, 4040.)
• Citation: 124 S.E. 346,158 Ga. 714
• Parties: COCROFT . v. COCROFT.
• Court: Georgia Supreme Court

158 Ga. 714

124 S.E. 346

COCROFT .

v.COCROFT.

(Nos. 4039, 4040.)

Supreme Court of Georgia.

Sept. 2, 1924.

Rehearing Denied Sept. 20, 1924.

(Syllabus by the Court.)

Gilbert, J., dissenting.

Error from Superior Court, Thomas County; W. E. Thomas, Judge.

Action by C. C. Cocroft against Nellie Cocroft. Judgment for plaintiff, and defendant brought error, and plaintiff brought cross-error. Reversed.

Titus & Dekle, of Thomasville, for plaintiff in error.

J. E. Craigmiles and Clifford E. Hay, both of Thomasville, for defendant in error.

ATKINSON, J. C. C. Cocroft instituted an action for divorce against his wife, Nellie Cocroft, in Thomas county, the county in which the parties resided. The petition as amended was solely on the ground of adultery. Adulteries were alleged with several different men. One of the men was H. L. Kemp, with whom it was alleged the offense was committed on July 29, 1921, in the city of Atlanta, Ga., and again on August 28,

1921, in Albany, Ga., as well as at other times and places, to the petitioner unknown. Another of the men was John T. Suthers, with whom it was alleged the offense was committed on the nights of June 10 and 11,

1922, in the city of Atlanta, and at other times before and since those dates. The material allegations of the petition were denied. On the trial, the evidence offered by the plaintiff and relied on to prove the charges of adultery was entirely circumstantial. One of the witnesses examined by the plaintiff was the man Kemp. The defendant did not testify, nor did she introduce any evidence. The jury returned a first verdict for the plaintiff. The defendant made a motion for a new trial, on the usual general grounds, which was subsequently amended so as to complain of the charge of the court and of certain rulings on the admission of evidence. A new trial was refused, and the movant excepted. After the bill of exceptions was certified, the defendant in error obtained a cross-bill of exceptions, in which error was assigned on rulings of the court rejecting from evidence certain testimony and a certain letter that was offered by the plain-tiff, all of which was fully set forth in exceptions pendente lite that were duly certified.

1. The plaintiff introduced in evidence the following telegrams:

(a) "Thomasville, Ga. June 2, 1922. Mr. J. T. Suthers, Humbolt Hotel, Humbolt, Tenn. When did you write. Nothing since Sheffield. Wire Saturday morning. Nell."

(b) "Trenton, Tenn. 840A. June 3, 1922. Mrs. C. 0. Cocroft, Love St., Thomasville, Ga. Paris and Paducah since Sheffield. Am writing to-day."

(c) "June 8, 1922. Moultrie, Ga. To Mr. John T. Suthers, Hermitage Hotel, Nashville, Tenn. In car. Dempsey to-night. Piedmont Friday night. Wire me Macon. Nell."

(d) "June 8, 1922. Nashville, Tenn. Mrs. O. C. Cocroft, Dempsey Hotel, Macon, Ga. Your wire here will arrive Saturday evening Dixie. Writing Atlanta. John."

The plaintiff also introduced evidence to the effect that the defendant had a box in the post-office at Thomasville, Ga., designated as box No. 604; that plaintiff had in his possession at his store a letter written and addressed on the stationery of the "Hotel Caldwell, " of Paris, Tenn.; that the envelope bore a stamp which, so far as legible,

was, "Paducah &—May 28, 1922;" that

the letter was addressed, "Box No. 604, Thomasville, Ga.: " that the letter did not reach the hands of the defendant, and was never seen by her. The plaintiff also introduced in evidence the register of the Hotel Winecoff in the city of Atlanta, on which was the entry "Jno. T. Suthers & Wife, Roanoke, Va.;" also testimony of H. G. Calloway, a hotel clerk, as follows:

"These two sheets and three pages contain names of all guests who registered at the Winecoff under date of June 10, 1922. The last entry on the second page is, 'John T. Suthers and wife, Roanoke, Va. Room 718.' I did not see the woman who occupied the room 718 on that occasion with John T. Suthers; I was not on duty at the time John T. Suthers registered there. Mr. Billingsly was on duty at that time. I did not see Mrs. Cocroft there on the 10th of June nor on the 11th of June that I know of, and I could not say for sure that I saw her there on the 12th of June. If I saw her at any time of June this year, 1922, I don't remember it. I don't know if I saw the guest who occupied room 718 under this entry 'John T. Suthers & wife, ' and I cannot say whether it was or was not Mrs. Cocroft who registered there as Mrs. Suthers."

Billingsly, referred to in the above-quoted testimony, was not examined as a witness. There was other testimony to the effect that Suthers and Mrs. Cocroft were seen together at the Hotel Winecoff on the 11th of June, and that they drove alone to the depot when he left the city, and at the parting they kissed and embraced each other. In connection with all the foregoing, the plaintiff introduced the letter that bore the address "Box No. 604, Thomasville, Ga." The letter was:

"Parris, Tennessee, Sunday Noon. "Dear: Yours ree'd at Jackson yesterday, and was sure glad to hear from you. Those pictures were real good, and much appreciated. I wonder if that one to have and to hold could be reproduced at some future time? If it could be, it sure would be a most wonderful experience. Well I have been traveling via Ford all week, and expect to continue this method for the next eight days. I expect to reach Nash, about the tenth, and will make out a new route there which will carry me through Ky. into Va. My suggestion was for you to go to N. C. via Atlanta and Chattanooga, if this latter town would not be too much out of your way. Then you could see Lookout mountain for a couple of days. They sell tourist tickets to N. C. via Chattanooga, allowing a stop-over in Chattanooga. Now, if you plan the trip this route as suggested, let me know in time to arrange my route as near to Chattanooga as possible, or, if you plan to not come any further than Atlanta, I'll arrange to make it there from Nash. Figure to make either Atlanta or Chattanooga around June 15th, because I will not delay longer than this date in being in Nash. Write me next to Palmer Hotel, Paducah, Ky., and after that Hermitage Hotel, Nash. In tie meantime I may give you an address between these two, but hardly think so, as I'll be in this car and will not have any definite route made till after leaving Nash. I am crazy to see you, and can hardly wait for the time to roll around. Will write again in the next few days. Best love. The same."

The letter was admitted over the objections:

(a) "That it did not appear that the said unsigned letter was in the handwriting of John T. Suthers, and that there was no proof that John T. Suthers wrote such letter."

(b) "Because proof showed that the said letter came from the possession, custody, and control of the husband, and that the wife had never received nor seen it, and therefore, as to her, it was hearsay evidence."

The admission of the letter is made one of the grounds of the motion for a new trial. The letter was admitted as a circumstance tending to prove the charge of adultery with John T. Suthers. No witness testified that the letter was in the handwriting of Suthers, or that he was seen to write it, or that he or the defendant admitted its genuineness. The only writing that was offered as his to prove genuineness of the letter by comparison of handwriting was the registry of names at the hotel, which was not itself proved to be in his handwriting. Calloway, the hotel clerk, who testified about the registry, was not on duty at the time, and did not pretend to testify that he saw Suthers sign the registry or that he knew Suthers' writing, and the name was signed In his handwriting. Another clerk, Billingsly, was on duty at the time of the registry, but he did not testify as a witness in the case. Inthese circumstances the handwriting of the letter could not be proved by comparison with the signature on the hotel registry. There was no other evidence as to handwriting of Suthers. Authenticity of the letter could have been shown by circumstantial evidence, without resort to the handwriting of the purported author; but the evidence in this case was insufficient for that purpose. See Freeman v. Brewster, 93 Ga. 648 (6), 21 S. E. 165; Campbell v. State, 123 Ga. 533 (4), 51 S. E. 644; Kent v. Wadley Southern Railway Co., 136 Ga. 857, 859, 72 S. E. 413; Ginn v. Ginn, 142 Ga. 420 (5, a), 83 S. E. 118. As the letter was not shown to have been the letter of Suthers, even if a letter of that character addressed to the defendant, but not read by her, would have been admissible against her, the letter that was admitted was not admissible.

2. The hotel register was admitted on the question of comparison of handwriting, over the objections "that it was not proven that the said signature was the genuine signature or handwriting of John T. Suthers, or that movant was present at the time said entry was made on said register or had any knowledge thereof, and that therefore, as to movant, the said entry was hearsay evidence, and that movant was in no way bound thereby." The admission of this evidence was made another ground of the motion for a new trial. Sufficient has been said in the first division to show that the hotel registry was also inadmissible. It was admitted for the purpose of comparison of handwriting, but, as it was not shown to be in the handwriting of Suthers, it could not serve to prove the handwriting of the letter which it was offered to prove, nor would it be proof that the defendant was registered as the wife of Suthers.

3. Error is assigned in the cross-bill of exceptions on rulings of the court in rejecting the testimony of three witnesses, who, if permitted to answer questions propounded to them, would have testified substantially that on June 13th, at Thomasville, Ga., while in the presence of the witnesses, such presence being known to both plaintiff and defendant, the defendant, on being confronted by...