Hobbs v. Holliman, 31361.

• Decision Date: 01 February 1947
• Docket Number: No. 31361.,31361.
• Citation: 41 S.E.2d 332
• Court: Georgia Court of Appeals
• Parties: HOBBS . v. HOLLIMAN.

41 S.E.2d 332

HOBBS .

v.HOLLIMAN.

No. 31361.

Court of Appeals of Georgia,

Division No. 1

Feb. 1, 1947.

.

Syllabus by the Court.

1. Where an action is for criminal conversation and harboring the plaintiff's wife, the gist of the action is the loss of "consortium, " which is a property right growing out of the marriage relationship, and includes the exclusive right to the services of the spouse and to the society, companionship, and conjugal affection of each other.

2. This suit is founded on tort, and the loss of consortium is the gist of the action. The acts of criminal conversation and harboring the wife being plead as inducement or explanatory of the gist of the cause of action, such acts are not required to be set forth with the same certainty as that required in setting forth the gist or the essential elements of the cause of action.

3. In the instant case the averments in the petition to the effect that the loss of consortium, caused by the defendant's criminal conversation with and the harboring of the plaintiff's wife, occurred during the year 1945 and extended into January, 1946, at designated places and at various and sundry places unknown to the plaintiff but well known to the defendant were sufficiently specific as against the special demurrer alleging in effect that the plaintiff had failed to allege when or where the defendant harbored or had criminal conversation with the plaintiff's wife while theplaintiff was overseas or after his return home.

4. Reasonable definiteness and certainty in pleading¹ is all that should be required to render it exempt from attack by special demurrer, and the petition in the instant case is exempt from the special demurrer urged against it.

Error from Superior Court, McDuffie County; C. J. Perryman, Judge.

Action by James Hobbs against Cornelius Holliman for damages for harboring and having criminal conversation with plaintiff's wife. To review judgment sustaining a special demurrer, the plaintiff brings error.

Judgment reversed.

The plaintiff, James Hobbs, brought an action for damages in the Superior Court of McDuffie County against the defendant, Cornelius Holliman, charging that the defendant had damaged him by harboring and having criminal conversation with the plaintiff's wife. The allegations of the petition material to a determination of the issues here involved are substantially these: (3) The plaintiff and Sara Hobbs had entered into a ceremonial marriage, duly performed, and lived together as husband and wife until the plaintiff's induction into the Army; (5) the plaintiff was inducted into the Army in March, 1943, went overseas in December, 1943, and was discharged from the Army in January, 1946; (6) the plaintiff had supported his wife during his service in the Army through an allotment and allowance of $50 per month; (7) when the plaintiff returned home, he learned that the defendant had taken his wife during the time that the plaintiff was overseas and had harbored her and had criminal conversation with her, and the defendant had continued to have criminal conversation with the plaintiff's wife after the plaintiff returned to his home; (7[sic]) as soon as the plaintiff learned of the defendant's conduct of harboring and having criminal conversation with his wife, the plaintiff separated from her and is at present living separate from her.

The defendant filed general and special demurrers. The ground of demurrer here involved is special ground, Paragraph 2: The defendant demurs to the plaintiff's petition upon the ground that the plaintiff does not in Paragraph 6 [this is obviously directed to the first of the paragraphs of the petition designated "7".] or elsewhere in his petition allege when or where the defendant harbored the plaintiff's wife or had criminal conversation with her while the plaintiff was overseas, or when or where these offenses occurred after the plaintiff returned home.

The court ordered a hearing on the demurrers to be set for April 20, 1946. On this date the plaintiff filed an amendment to the petition alleging substantially the following: That during the year 1945, the said Cornelius Holliman showed attention to Sara Hobbs, the plaintiff's wife, while the plaintiff was overseas; during the entire year the defendant kept company with her openly and notoriously, and accompanied her on automobile trips at all times of the day and in sight of the public when only the two of them were in the car together; he called at her house and she called at his, and they visited each other all during the entire year 1945; that he harbored her during the entire year of 1945; that he had criminal conversation with her at various and sundry places during the year 1945 from the first of the year through until the last of the year, and even in the year 1946, and particularly through the month of January, 1946; that said criminal conversation took place at the home of Sara Hobbs in Thomson, Georgia, and at various and sundry places unknown to the plaintiff; and that the said criminal conversation took place at a house at 1447 Tutts Street, in Augusta, Georgia; and though many of the places where the criminal conversation took place are unknown to this plaintiff, the places are well known to the defendant. On April 20, 1946, this amendment was allowed, subject to demurrer, and ordered filed. After a hearing upon the demurrer the court passed the following order: "The within demurrer in the within stated case was heard before me at the time and place agreed upon by coun-sel for the opposite parties, and decision thereon was reserved till this date. Before any ruling was made on the demurrer, plaintiff offered an amendment to his petition which was allowed subject to demurrer and ordered filed. Thereupon, defendant renewed his original demurrer to said petition as amended and insisted that said petition did not meet the grounds of his demurrer. Grounds Nos. 1, 3, 4, 5, and 6 of said demurrer are hereby overruled. Ground No. 2 of said demurrer, which evidently attacks Paragraph No. 7 of plaintiff's petition (there being two paragraphs of the petition bearing that number) is hereby sustained with the right of plaintiff to amend his petition to meet said ground on or by the June Term, 1946, of McDuffie Superior Court, or else said petition to stand dismissed. This the 17th. day of May, 1946."

At the June Term, the plaintiff refused to amend further and moved the court to revoke its decision in sustaining ground 2 of the demurrer, which motion the court overruled and allowed the petition to become dismissed. The plaintiff excepted to these rulings.

Evans & Evans, Jack D. Evans, and Randall Evans, Jr., all of Thomson, for plaintiff in error.

J. Glenn Stovall and Robert E. Knox, both of Thomson, for defendant in error.

MacINTYRE, Judge.

1. Subsequent to the filing of the defendant's demurrers but prior to any ruling thereon by the court, the plaintiff filed an amendment to meet ground 2 of the defendant's demurrer. This ground of the demurrer sought to elicit from the plaintiff information as to the time and place of the occurrence of the criminal conversation with and the harboring of the plaintiff's wife with which the plaintiff sought to charge the defendant. By his amendment,...