Herrington v. Spell

• Decision Date: 19 March 1934
• Docket Number: 23448.
• Parties: HERRINGTON v. SPELL.
• Court: Georgia Court of Appeals

173 S.E. 870

48 Ga.App. 802

HERRINGTON v. SPELL.

No. 23448.

Court of Appeals of Georgia, Second Division

March 19, 1934

Error from Superior Court, Jeff Davis County; Eschol Graham, Judge.

Suit by L. A. Herrington against A. F. Spell. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

Highsmith & Highsmith, of Baxley, for plaintiff in error.

Gordon Knox and J. C. Bennett, both of Hazlehurst, for defendant in error.

Syllabus OPINION.

SUTTON Judge.

1. Plaintiff sued for damages, alleging that the defendant had violated and broken up his home and seduced and debauched his wife and brought disgrace upon his two children and wrecked and ruined the life and peace and happiness of petitioner inducing petitioner's wife "to yield to his lustful entreaties and enter upon a life of sexual relations with said defendant, which said acts of sexual intercourse with him occurred in the home of petitioner." The petition further set up that on a named date "petitioner was told of the visits of said defendant to the home of petitioner and of other circumstances, and one week later *** learned definitely, through the admissions of his wife, of the seduction and debauchery of her by the said Spell as hereinabove alleged, petitioner's said wife at said time having admitted to petitioner the fact of her said relations with said defendant and having further stated to petitioner that her affection for petitioner had been undermined, and that she now cared for the said Spell." Upon the trial of the case the court struck the last-quoted allegations of the petition, on oral motion of the defendant. The plaintiff assigns this action of the court as error. Held:

(a) Neither testimony of the plaintiff husband as to admissions by his wife of adulterous relations with the defendant, nor testimony of the wife as to her adulterous conduct with the defendant, would be admissible in an action for damages brought by the husband for alleged alienation of the affections of his wife by the defendant and his criminal conversation with her. Civil Code 1910, § 5861; Graves v. Harris, 117 Ga. 817, 45 S.E. 239; McAlpin v Ryan, 150 Ga. 746, 105 S.E. 289; Thompson v Crawford, 30 Ga.App. 796, 119 S.E. 440.

(b) Statements or declarations of an alleged alienated spouse, not made in the presence of the defendant, are not admissible as substantive evidence to show defendant's guilt. Statements by the wife to her husband, out of the defendant's presence, concerning defendant's conduct and statements to her, were not substantive evidence that the defendant had said or done the things related by her. So such admissions of the wife to the plaintiff husband, as were made in this case, subsequent to the alleged enticement, are not admissible. 30 C.J. § 1011, pp. 1139, 1140.

(c) In such circumstances, the allegations of plaintiff's petition, setting up that his wife had admitted to him "the seduction and debauchery of her by the said" defendant, were not relevant matters of pleading in the above case, and were properly stricken by the court on motion of the defendant.

(d) All defects which appear on the face of the pleadings may be taken advantage of by motion. Civil Code 1910, § 5629. Allegations in a pleading which set up irrelevant matter, evidence in support of which would not be admissible upon the trial of the case, will be stricken out on motion. Smith v. Smith, 167 Ga. 98, 145 S.E. 63; Roberts v. Investors' Savings Bank, 154 Ga. 45 (6), 113 S.E. 398; Bibb Sewer Pipe Co. v. Westinghouse Electric & Manufacturing Co., 142 Ga. 263, 82 S.E. 642; Jones v. Jones, 138 Ga. 730, 75 S.E. 1129.

2. Plaintiff's petition sought damages of the defendant because the defendant had broken up his home, debauching his wife into living a life of sexual relations with him, and thus alienating her affections. The defendant denied the plaintiff's charges. Upon the issue thus formed the case proceeded to trial. At the most, the evidence authorized the jury to find that the plaintiff was a poor man, having a young wife and two small children; that the defendant was a rich man, and older than the plaintiff, who was his brother-in-law; that the defendant had hired ...