Holman v. Holman

• Decision Date: 21 November 1945
• Docket Number: 31084.
• Citation: 35 S.E.2d 923,73 Ga.App. 205
• Parties: HOLMAN v. HOLMAN.
• Court: Georgia Court of Appeals

35 S.E.2d 923

73 Ga.App. 205

HOLMAN v. HOLMAN.

No. 31084.

Court of Appeals of Georgia, Division No. 2.

November 21, 1945

Syllabus by the Court.

A wife, even though living separate and apart from her husband may not maintain against him an action for malicious prosecution.

Nathan Jolles, of Augusta, for plaintiff in error.

Hammond Kennedy, Yow and Harry A. Woodward, all of Augusta, for defendant in error.

FELTON Judge.

The plaintiff filed an action against her husband, from whom she had been living separate and apart for two years before the acts complained of, to recover damages for an alleged malicious prosecution. The general demurrer to the petition was sustained. Plaintiff excepts to that judgment.

1. Under the common law husband and wife could not maintain an action, either against the other, for damages for torts whether living together or not. Carmichael v Carmichael, 53 Ga.App. 663, 187 S.E. 116; Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833, 109 A.L.R. 877; Ralston v. Ralston, 1930, 2 K.B. 238; Cooley on Torts (3rd ed.) 474; Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180, 30 L.R.A., N.S., 1153, 21 Ann.Cas. 921. Since the right of one spouse to sue the other is purely statutory, the right must be expressly granted or be granted by necessary implication, neither of which has been done in Georgia except as to rights of property. The policy of the law upon which the rule that husbands and wives living together may not sue each other for damages for such torts, applies in situations where they are living apart. Until the relationship is dissolved the fiction of the law still obtains. In a certain sense they are one. Often times, after a separation, differences are resolved and reunions occur. It is as much in the interest of tranquil domestic relationships and unbroken homes to prevent obstructions to the reunion of separated spouses as it is to guard against separation in the first instance. The denial to the wife of such a right of action is not contrary to the following constitutional provision: 'Protection to person and property is the paramount duty of government, and shall be impartial and complete.' Code, § 2-102, Const. art. 1, § 1, par. 2. Our various constitutions are to be construed in the light of the common law existing at the time of their adoption and the definition or meaning of its terms is to be ascertained by reference to the common-law meaning unless a contrary or different intention...