McMillan v. Smith

• Decision Date: 29 September 1933
• Docket Number: 22702.
• Citation: 171 S.E. 169,47 Ga.App. 646
• Parties: McMILLAN v. SMITH.
• Court: Georgia Court of Appeals

171 S.E. 169

47 Ga.App. 646

McMILLAN v. SMITH.

No. 22702.

Court of Appeals of Georgia, Second Division

September 29, 1933

Syllabus by Editorial Staff.

Husband has right of action against one who wrongfully and willfully deprives husband of "consortium" of wife.

"Consortium" is the conjugal fellowship of husband and wife, and the right of each to the company, co-operation, and aid of the other in every conjugal relation.

Husband's petition, alleging defendant, by various specified acts induced plaintiff's wife to sever her relations with plaintiff, stated cause of action.

Petition alleged that defendant induced plaintiff's wife to visit him and to take trips with him, called her, wrote to her, met her, and gave her gifts, for the purpose of persuading her to sever her relations with plaintiff, and that by arranging a fictitious address of plaintiff and causing service of divorce suit to be made by publication, a divorce was obtained without plaintiff's knowledge, and that his wife afterwards married defendant.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by F. O. Smith against J. T. McMillan. To review a judgment overruling general and special demurrers to the petition defendant brings error.

Affirmed.

Ripley & Bailey, of Atlanta, for plaintiff in error.

Carpenter & Ellis, of Atlanta, for defendant in error.

Syllabus OPINION.

STEPHENS Judge.

1. Marriage is a contract by which the husband has the right to the consortium of the wife, which is defined to be "the conjugal fellowship of husband and wife, and the right of each to the company, co-operation and aid of the other in every conjugal relation." Bigaouette v. Paulet, 134 Mass. 123, 45 Am.Rep. 307. Where another man willfully and intentionally, through mechanism, enticement, seduction and other wrongful means, interferes with this relation, he deprives the husband of the consortium of the wife, and the husband has a right of action against him in damages therefor. Martin v. Ball, 30 Ga.App. 729, 119 S.E. 222; Gahagan v. Church, 239 Mass. 558, 132 N.E. 357; Woodson v. Bailey, 210 Ala. 568, 98 So. 809; Flandermeyer v. Cooper, 85 Ohio St. 327, 98 N.E. 102, 40 L.R.A. (N. S.) 360, Ann.Cas. 1913A, 983; 13 R.C.L. 1458; 30 C.J. 1118.

2. Where it is alleged that while the plaintiff and his wife with the knowledge of the defendant, were living together in undisturbed relations as man and wife, the defendant induced...