Georgia Intern. Life Ins. Co. v. Boney
| Decision Date | 16 September 1976 |
| Docket Number | No. 2,No. 52419,52419,2 |
| Citation | 139 Ga.App. 575,228 S.E.2d 731 |
| Parties | GEORGIA INTERNATIONAL LIFE INSURANCE COMPANY v. F. H. BONEY, Administrator |
| Court | Georgia Court of Appeals |
Smith, Shaw, Maddox, Davidson & Graham, Rome, Groze Murphy, Jr., for appellant.
Farrar & Farrar, A. A. Farrar, Boney & Boney, William U. Hyden, Jr., Summerville, for appellee.
Georgia International Life Insurance Company (hereinafter Georgia International) brings this interlocutory appeal on a certificate of immediate review granted by the trial court and the grant of a motion for such an appeal by this court.
Peter Boney, now deceased, negotiated two loans with his local bank. Each of these loans was secured by credit life insurance issued by Georgia International. Within a year of the issuance of the two insurance policies, Peter Boney suffered a fatal gunshot wound. The administrator (appellee herein) of Peter Boney's estate sought recovery of the loan amounts covered by the insurance. Georgia International denied liability asserting that Peter Boney's death was by suicide and its insurance contracts by express terms limited coverage in such cases to a return of the premiums. Georgia International has paid the premiums into the registry of the court.
There are three issues involved in this appeal: (1) whether a note left on the kitchen table by the decedent shortly before his death is a confidential communication between husband and wife; (2) whether the wife's testimony as to conversations with her husband and her observations of his conduct and appearance were also confidential communications; and (3) whether certain reports and documents were protected from discovery by the work products rule. Held:
1. After Peter Boney's administrator brought suit against Georgia International on the two policies, a deposition was taken of the decedent's wife. During the deposition she stated that, just before the fatal gunshot was fired, her husband went into the backyard with a pistol and that, on his way out, he directed her attention to a note on the kitchen table. The wife was asked numerous questions during the deposition concerning the note as well as questions concerning her husband's actions, conversations and appearance on the night of his death. The administrator objected to the admissibility of the note and of any of her husband's actions, conversations or expressions as observed by her on the ground that they were privileged communications, and had not been waived by Peter Boney. The trial court, in a preliminary hearing, ruled that the letter or note and all conversations between Peter Boney and his wife were inadmissible.
As to the note, Georgia International contends that Peter Boney must have known that this note would have been examined by persons other than his wife, therefore he waived the privilege of confidentiality. Pretermitting the obvious assumption of suicide, we conclude that the trial court did not err in holding the note inadmissible as a confidential writing. Our statute makes a writing from husband to wife concerning marital and family relationship incompetent and inadmissible. Code § 38-418. It does not simply proscribe the channel through which the evidence reaches the jury, but makes the evidence itself inadmissible. McKie v. State, 165 Ga. 210, 220, 140 S.E. 625. There can be no doubt that a note concerning family relationships left on the kitchen table in the evening, in a single family dwelling in which the wife is the only adult occupant, and to which the husband called the wife's attention, is intended as a confidential communication and is absolutely protected.
Georgia International also contends that even if the note was privileged, the privilege was waived by the administrator when he gave the note to the wife and was waived by the wife when she voluntarily during the deposition gave the note to the attorney for Georgia International. There can be no question that neither the administrator nor the wife waived the privilege of confidentiality, assuming arguendo, that under limited circumstances they might. In this case the testimony of the administrator was that he did not wish to release the note but because the note was the property of the wife, he did relinquish the note to her. The privilege injures to the communicator, survives death and is permanent. In McCord v. McCord, 140 Ga. 170, 78 S.E. 833, it was held that the privilege was intended to secure freedom from apprehension in the mind of the one desiring to communicate. Therefore, the privilege belongs to the communicating one. Moreover, the death or divorce of the other member does not affect the policy of prohibition. Lingo v. State, 29 Ga. 470, 483. See Boggess v. Aetna Life Ins. Co., 128 Ga.App. 190, 192, 196 S.E.2d 172. More directly in point as to the note in this case, it was held in McKie v. State, 165 Ga. 210, at pages 219 and 221, 140 S.E. 625, supra, that letters from a husband to his wife, or from her to him, are inherently and absolutely privileged communications, and are not admissible in evidence for or against the husband or wife, no matter in whose hands they may be. Since the privilege belongs to the communicator, it has been held that the privilege cannot be waived by the administrator (Bowman v. Patrick, 8 Cir., 32 F. 368, cited in McKie v. State, 165 Ga. 210, 140 S.E. 625, supra, at page 219) nor by the surviving spouse, since communications between husband and wife survive death and are protected forever. Lingo v. State,29 Ga. 470, supra.
Neither the administrator nor the wife had the authority under the circumstances of this case to waive that privilege following the death of the writer of the note. McKie v. State, supra; Lowry v. Lowry, 170 Ga. 349, 352, 153 S.E. 11. We conclude the court correctly ruled as inadmissible the note from the deceased husband to his wife.
2. As to the questions and answers contained in the wife's deposition, a more difficult problem is presented. The deposition extends for some 42 pages. Objections were made and sustained to questions of the wife's observations of what her husband did, his appearance, expressions, and condition as well as what he said to her. Georgia International contends that most, if not all, of the wife's testimony in this area would be admissible because it would not be protected by the confidential communications privilege in that her husband's conduct was neither confidential nor a communication.
This subject has infrequently arisen in the reported cases in Georgia. In the early case of Jackson v. Jackson, 40 Ga. 150, 153 (1869), it was held that while Mrs. Jackson was a competent witness to testify concerning a promissory note upon which the suit was based, she should not have been allowed to testify as to any fact which came to her knowledge by reason of the confidential relation of husband and wife, during her coverture, as the wife of her deceased husband. The underlying basis for this privilege of privacy was set forth in the early case of Stanford v. Murphy,63 Ga. 410, 416. It was there concluded that any confidential communication from husband to wife may not be divulged in any court, for the reason that the fact communicated was disclosed in the privacy of the marital relation. The peace of the household might be disturbed if it were divulged. Upon precisely the same principle, any knowledge acquired by the wife on account of the trust confided in her by her husband of any fact whatever should be excluded, whether the husband told it to her out of his mouth or showed it to her in a letter, or pointed it out with his hand, or locked it up and gave to her lone access to it by entrusting her with the key.
As pointed out by Georgia International, the privilege is not all-inclusive. Though the rule establishes the wife as an incompetent witness for or against the husband in regard to any information derived from his confidence in her, where there is nothing to indicate that the knowledge was derived from any special confidence which one spouse reposed in the other, or that there was any occasion for the one spouse to make to the other any confidential communication concerning the matter, the knowledge gained is not privileged. See Macon Railway and Light Co. v. Mason, 123 Ga. 773, 780(7), 51 S.E. 569. Only confidential communications between husband and wife are excluded; and this principle does not prohibit one of the married pair...
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