McCord v. McCord

• Decision Date: 17 July 1913
• Citation: 78 S.E. 833,140 Ga. 170
• Parties: McCORD v. McCORD (two cases).
• Court: Georgia Supreme Court

78 S.E. 833

140 Ga. 170

McCORD v. McCORD (two cases).

Supreme Court of Georgia

July 17, 1913

Syllabus by the Court.

The court did not err in refusing, upon oral motion in the nature of a general demurrer, made by the defendant at the trial term, to dismiss the petition in this case on the ground that a schedule of the property of the plaintiff and defendant was not attached to the petition.

A confidential communication by a wife to her husband, whether orally made or by letter, is privileged, and in a suit between the husband and wife will be excluded from evidence upon objection made by the wife, based upon the ground of a privilege. But such privilege may be waived. And where, as in the present case, the suit is one brought by the wife for divorce on the ground of desertion, and the wife gives testimony in her own favor showing that her husband had willfully and continuously deserted her for a period of three years prior to the commencement of the suit, it was competent for the husband to introduce her letter, in which the wife at a time immediately prior to the beginning of the period of alleged desertion, wrote him requesting him not to make any attempts to see her upon her return to her home, from which she had been absent a short time on a visit; the plaintiff and defendant during their married life, up to the time when she left on the visit, having resided upon the property of the plaintiff.

A ground of a motion for a new trial, complaining of a lengthy excerpt from a charge covering several pages, and embracing numerous and varied propositions of law, some of which are clearly applicable to the facts of the case, presents no ground for the reversal of a judgment refusing a new trial where the ground of the motion was that the charge complained of did not correctly state the law applicable to the facts of the case.

Where a suit, brought by a wife for divorce from her husband, is based upon the ground of desertion, as in the instant case and the husband introduces in evidence the letter from the wife referred to in the second headnote, and from the wife's testimony it appeared that the husband actually remained away from her home continuously for three years prior to the filing of the suit, it cannot be said that the court erred in submitting to the jury the question as to whether or not his remaining away "was done with the consent and agreement upon the part of the plaintiff."

(a) The letter referred to, considered in connection with the testimony of the wife and the fact that the husband did remain away, would have authorized counsel for the defendant to have argued to the jury a theory of the case, based upon a contention that the absence of the husband for a period of three years from the home of the wife was by consent and agreement; and, the court having stated in his charge that such was the contention of the defendant, it will not be assumed, in the absence of anything to show that the defendant did not make this contention, that the statement of the court was not true.

In one part of the charge to the jury, the judge used language which imposed upon the defendant in the case the burden of showing, in case the jury believed that he willfully remained away from the wife for a period of three years, that this was done by "consent and agreement," whereas it would have been a sufficient reply upon the part of the defendant to show that he had remained away from the wife with her consent or by agreement.

The court should not have so charged the jury as to make the undisclosed intent with which the wife wrote the letter referred to in the second headnote a material fact for the consideration of the jury in passing upon the question as to whether or not the absenting of himself for a period of three years by the husband was with the consent of the wife, in the absence of evidence to show that the husband knew of the intent with which the letter was written.

Error from Superior Court, Brooks County; W. E. Thomas, Judge.

Action by Mattie E. McCord against R. K. McCord for divorce. Decree for plaintiff, and defendant brings error and plaintiff prosecutes a cross-bill of exceptions. Reversed on defendant's bill and affirmed on the cross-bill.

Mrs. McCord filed her libel for divorce, basing her action upon the alleged willful and continuous desertion of her husband for a period of three years prior to the commencement of the suit. The husband filed his plea and answer denying the truth of the material allegations in the plaintiff's petition. Upon the trial a verdict in favor of the petitioner and granting a total divorce was rendered by the jury. A motion for a new trial was made by the respondent, which being overruled, he excepted. And the plaintiff filed her cross-bill of exceptions, complaining of the admission in evidence, over objection, of a letter written by her to the husband a short time before the commencement of the period of desertion alleged in the petition.

J. R. Walker and Dan R. Bruce, both of Valdosta, and J. D. Wade, Jr., of Quitman, for plaintiff in error.

G. C. Edmondson, McCall & McCall, and Branch & Snow, all of Quitman, for defendant in error.

BECK, J. (after stating the facts as above).

1. The court did not err in refusing, upon oral motion in the nature of a general demurrer made by the defendant at the trial term, to dismiss the petition in this case on the ground that a schedule of the property of the plaintiff and defendant was not attached to the petition.

2. Both in the motion for a new trial filed by the husband and in the cross-bill of exceptions filed by the wife, who was the prevailing party in the action, exceptions are taken to the admission in evidence of communications in the shape of letters from the complaining wife to her husband, which letters were written a short time before the alleged desertion began. The plaintiff introduced three of these letters written by herself, and the husband introduced one letter from his wife, written to him. Objection was made to the introduction of the letters written by the plaintiff and tendered at the trial by her counsel, upon the ground, among others, that the same were nothing more than self-serving declarations. The letters contained, among statements and communications that are immaterial, complaints upon the part of the writer of the husband's coldness towards the writer and neglect of her, of his failure to give indications of love and affection, and of indifference to her welfare. This is not a full statement of the contents of the letters but sufficiently illustrates their character for purposes of this decision. The letter from the wife to the husband, and which was introduced in evidence by the husband over objection of counsel for the plaintiff, was as follows: "Mr. McCord: I send you your ring and also the brooch, and ask you to kindly return my ring by registered mail to Quitman, Ga. I expect to reach home soon, and ask you in advance to not make any attempts to see...