Mcmillan v. Smith

• Decision Date: 29 September 1933
• Docket Number: No. 22702.,22702.
• Citation: 171 S.E. 169,47 Ga.App. 646
• Parties: McMillan. v. smith.
• Court: Georgia Court of Appeals

47 Ga.App. 646

171 S.E. 169

McMillan.

v.smith.

No. 22702.

Court of Appeals of Georgia, Division No. 2.

Sept. 29, 1933.

Syllabus by Editorial Staff.

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 by the Court.

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. Hep. 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. Hall, 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 the wife to visit him on various occasions and to take trips with him, to be in his presence by seeing her, called her, wrote to her, met her, and gave her gifts, that he committed these acts for the purpose of persuading her to sever her relations with the plaintiff and to leave him, that the defendant promised her that if she would leave the plaintiff the defendant would marry her and give her all the necessities and luxuries of life which he could afford, that the defendant planned for the wife to obtain a divorce from the plaintiff without the plaintiff's knowledge, and, by arranging a "ficti...