Enger v. Erwin

• Decision Date: 07 May 1980
• Docket Number: No. 35892,35892
• Citation: Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (Ga. 1980)
• Parties: ENGER v. ERWIN.
• Court: Georgia Supreme Court

Page 25

267 S.E.2d 25

245 Ga. 753

ENGER v. ERWIN.

No. 35892.

Supreme Court of Georgia.

Submitted Feb. 1, 1980.

Decided May 7, 1980.

A. Russell Blank, Thomas C. Blaska, Atlanta, for appellant.

Candler Crim, Jr., Atlanta, for appellee.

CLARKE, Justice.

Appellee brought suit against appellant for alienation of affections pursuant to Code Ann. § 105-1203. While his suit was pending, the General Assembly enacted the Family and Domestic Relations Law, Ga.L.1979, p. 466, Section 46 of which entirely superseded the former Code Ann. § 105-1203. The new Code section, which appears at Code Ann. § 30-109.1 as well as at Code Ann. § 105-1203, abolished the cause of action for alienation of affections upon which appellee's complaint was based.

Laws usually may not have retrospective application. Code Ann. § 102-104. The General Assembly provided, however, that new Code Ann. § 105-1203 apply retrospectively to further proceedings in pending cases. Ga.L.1979, pp. 466, 498. Relying on this section of the Act, appellant moved to dismiss the complaint. The trial court found the retrospective application of Code Ann. § 30-1091 and § 105-1203 unconstitutional and denied the motion to dismiss. Appellant is before this court assigning error to the order of the trial court ruling unconstitutional the retrospective application of the repeal of the cause of action for alienation of affections. ¹

A constitutional act of the legislature has been found to be the equivalent of a contract and the rights created thereby may not be impaired by subsequent legislation. Franklin v. Mayor etc., of Savannah, 199 Ga. 426, 34 S.E.2d 506 (1945); Hargroves v. Chambers, 30 Ga. 580 (1860); Winter v. Jones, 10 Ga. 190 (1851). Although legislation which involves mere procedural or evidentiary changes may operate retrospectively, legislation which affects substantive rights may operate prospectively only. F. H. Ross & Co. v. White, 224 Ga. 324, 161 S.E.2d 857 (1968).

In F. H. Ross & Co. v. White, supra, this court found that "It is well settled that a statute affecting substantive rights operates prospectively. Code § 102-104." The court further found the right of contribution between joint tortfeasors to be such a substantive right, that the rights of the parties in this negligence case were fixed at the time of the event upon which liability depended, and that the right of contribution, having been made available by a statute passed since that event, did not apply.

The Court of Appeals in Jackson v. Young, 125 Ga.App. 342, 187 S.E.2d 564 (1972) and in Southern R. Co. v. A. O. Smith Corp., 134 Ga.App. 219, 213 S.E.2d 903 (1975) reiterated the principle set out in F. H. Ross & Co. v. White, supra. In Jackson v. Young, supra, the court found the existence of a substantive right in a situation closely analogous to the instant case. An alleged tort by a 12-year old minor occurred when the age of accountability and liability in Georgia was 10. The court found that "(t)he plaintiff herein having a right, vested by the law as it stood at the time of the incident in 1966, to sue a 12-year old minor for negligence, the subsequent action of the legislature in changing the age of accountability did not divest that right." 125 Ga.App. at 342, 187 S.E.2d at 565.

The appellee's right to bring an action for alienation of affections...