Hosford v. Hosford, 26701.

• Decision Date: 09 July 1938
• Docket Number: No. 26701.,26701.
• Citation: 58 Ga.App. 188,198 S.E. 289
• Parties: HOSFORD. v. HOSFORD.
• Court: Georgia Court of Appeals

58 Ga.App. 188

198 S.E. 289

HOSFORD.

v.HOSFORD.

No. 26701.

Court of Appeals of Georgia,

Division No. 1.

July 9, 1938.

Syllabus by the Court.

1. The gist of an action for alienation of affection is loss of consortium, that is, "the right of the husband or wife to the conjugal fellowship, company, cooperation, and aid of the other in every conjugal way" (Black's Law Dictionary, 3rd ed.), and a cause of action may arise therefor even though the husband and wife still continue to occupy the same house.

2. The right to sue for alienation of the affections of the opposite spouse is a personal right within the meaning of the Code, § 3-1004, and the cause of action must be brought within two years after it arises. Where a man moves into another room in the same house, but no longer lives with his wife as such (she then and there losing the consortium of her husband), and the wife later moves from his house, the wife's cause of action against a third person for alienation of her husband's affection (his moving to another room being the result of such acts of alienation) arises on the date he moved into another room and such date being more than two years before this action is brought, her action is barred by the statute of limitations.

Error from City Court of Eastman; H. F. Lawson, Judge pro hac vice.

Action by Mrs. E. C. Hosford against Mrs.. C. C. Hosford, mother of plaintiff's divorced husband, for alienation of husband's affections. Judgment dismissing the action, and plaintiff brings error.

Affirmed.

Kennedy, Campbell & Therrell, of Atlanta, and Thos. J. Sappington, of Eastman, for plaintiff in error.

Park & Strozier, of. Macon, and A. Russell Ross, of Eastman, for defendant in error.

MacINTYRE, Judge.

On July 6, 1937, Mrs. E. C. Hosford brought this action against Mrs. C. C. Hosford, mother of her divorced husband, for alienation of her husband's affections. The plaintiff alleges in her petition that she and the defendant's son were married in 1905, and lived happily together in Atlanta until 1931, at which time, because of financial difficulties, they moved to Eastman, Georgia. There were two children born to the plaintiff and her husband, Mildred, 21 year old daughter now living, and another daughter who has been dead for some time. Upon arrival in Eastman the defendant insisted that the plaintiff and her family come and live with her. This was done, and they continued living with the defendant for some time, later moving to a house owned by the plaintiff's husband. The plaintiff's husband was the only child of the defendant, and the defendant has always been a possessive and jealous mother, and attempted to prevent the marriage of her son to the plaintiff by offering him bribes if he would not marry the plaintiff. The plaintiff and her husband lived the normal, happy, and contented married life, but after they moved to Eastman this relationship gradually changed, and, as the plaintiff alleged, the defendant deliberately, intentionally, maliciously, and without cause brought about separation and divorce of the plaintiff and her husband. Shortly after they made their home with the de-fendant, she the defendant told her son "that he made a mistake when he married petitioner, and had made an even greater one when he brought his wife and child to Eastman; that his wife and daughter were eating her out of house and home, and that although she loved and wanted to always take care of him, she saw no need or reason in boarding his wife and daughter who in no way helped him but were millstones around his neck." The defendant openly, made the same remarks in the presence of the husband, and humiliated and slandered the plaintiff, called her lazy, extravagant, and selfish, which the plaintiff denies and says that she in fact did all the housework, cooking, etc., and sold some of her personal belongings in order to purchase food and clothing. It is alleged that the defendant deliberately and maliciously did these acts with the intent to bring about a divorce and separation of the plaintiff and her husband. It appears that the defendant is a wealthy woman, owning in her own right money and property in the amount of thirty or thirty five thousand dollars, and in addition she has a life-estate in the estate of her late husband, which is worth about thirty or forty thousand dollars; and she threatened to cut the plaintiff's husband off if he did not accede to her entreaties to leave the plaintiff. Realizing this condition, the plaintiff persuaded her husband and they moved into another house. But the defendant continued her acts, and on one occasion attempted to throw hot grease into the plaintiff's face in order to mar her physical appearance so that the husband would lose his love for her. The husband drank a great deal, and being in fear that he would be cut off by his mother, he adhered to her advice and began persecuting the plaintiff. On June 21, 1934, he got drunk and so abused the plaintiff that she had to go to bed. On the same night the defendant came to their house and counseled with the husband, and thereafter the husband moved into another room in the house and never lived with the plaintiff again, and from that night until the date when she moved from his home he refused to recognize her as his wife or to live with her as his wife. She continued living in the other room, as stated, until his abuse become so frequent and violent that in fear of her life and health, she moved from her husband's house on October 17, 1936. In May, 1937, she was granted a divorce, and upon advice of her counsel, she accepted $300 as settlement of alimony, because her husband threatened to leave the jurisdiction of the court. It was further alleged that the defendant conspired with her son to defraud the plaintiff by getting him to give the defendant title to his house, so that he would not have any property from which the plaintiff could enforce payment of alimony. The plaintiff asked actual and punitive damages in the amount of $25,000. The defendant demurred to the petition, on the ground that the cause of action was barred by the statute of limitations. The judge sustained the demurrer and dismissed the action. To this ruling the plaintiff excepted.

The first question for the determination of this court is: When did the cause of action for the alienation of the affections of the plaintiff's husband arise or accrue? The plaintiff contends that the loss of consortium was not complete until October, 1936, the date when the plaintiff moved from her husband's home, and that the cause of action did not accrue until that date. The gist of the action is loss of consortium, which includes the right of the wife to the conjugal affection, fellowship, company, co-operation, and aid in every conjugal way. Black's Law Dictionary, 3rd ed., 408. "It is not a prerequisite to the right of the plaintiff to maintain this suit in her own name that she should have been abandoned by her husband in the literal sense, nor that she should have actually separated herself from him by or without a decree of divorce. If she has suffered the wrong complained of, her right to redress is absolute. It cannot be made to depend upon any of these conditions." Foot v. Card, 58 Conn. 1, 18 A. 1027, 1029, 6 L.R.A. 829, 18 Am.St. Rep. 258. "Conceding therefore, for the sake of argument, that the action at bar is one solely for alienation of affections, as appellant's counsel contend, we are to decide whether the fact that the plaintiff's husband did not actually and in the literal sense of the term abandon her will operate to defeat her right to recover. We are clear that it will not." Rott v. Goehring, 33 N.D. 413, 157 N.W. 294, 295, L.R.A. 1916E, 1089, Ann.Cas.l918A, 643. "Loss of service is not the basis of the right of action, for pecuniary loss is not a necessary element; but the right to recover is based upon loss of consortium." Pugsley v. Smyth, 98 Or. 448, 194 P. 686, 690; 2 Cooley on Torts, 5. We think that the loss of consortium was complete and thecause of action accrued on July 21, 1934, the date when the husband moved into another room and thereafter "refused to recognize petitioner as his wife or to live with her as his wife, " and we are...