Wright v. Lester, 21567

• Decision Date: 28 May 1962
• Docket Number: No. 21567,21567
• Citation: 218 Ga. 31,126 S.E.2d 419
• Parties: Franklin WRIGHT v. Richard N. LESTER.
• Court: Georgia Supreme Court

Page 419

126 S.E.2d 419

218 Ga. 31

Franklin WRIGHT v. Richard N. LESTER.

No. 21567.

Supreme Court of Georgia.

May 28, 1962.

Syllabus by the Court

1. The purpose of Art. XII, Sec. I, Par. V of the Constitution of 1945 (Code Ann. § 2-8005) was to protect rights acquired pursuant to prior decisions of a court under the Constitution of 1877.

2. Alienation of the affections of the spouse of the complainant with loss of consortium, is a tort for which damages may be recovered under the law of this State.

3. The defendant's special demurrers to paragraphs 9 and 12 of the petition as amended should have been sustained.

Houston White, Beryl H. Weiner, John E. Hogg, Atlanta, for plaintiff in error.

Richard M. Hester, Frank B. Hester, Atlanta, for defendant in error.

HEAD, Presiding Justice.

1. In the present case the Court of Appeals held that the petition stated a cause of action for alienation of affections and the loss of consortium, and that it was not error to overrule the general demurrers of the defendant. See Wright v. Lester, 105 Ga.App. 107, 123 S.E.2d 672. This court granted certiorari primarily by reason of the construction given Art. XII, Sec. I, Par. V of the Constitution of 1945 (Code Ann. § 2-8005) by the Court of Appeals.

In the opinion of the Court of Appeals it was stated in part: '* * * counsel contends that alienation of affections was not a substantive cause of action at the common law, and thus that there is in Georgia no cause of action for alienation of affections arising from loss or injury to the right of consortium except upon a showing of adultery, abduction, harboring, or enticement. With this contention we do not agree.' As authority sustaining a cause of action for alienation of affections, the Court of Appeals cited Martin v. Ball, 30 Ga.App. 729(1), 119 S.E. 222; Hosford v. Hosford, 58 Ga.App. 188(1), 198 S.E. 289 (and other decisions by the Court of Appeals), and in the opinion it was further stated: 'The Martin v. Ball case, supra, was decided in 1923, McMillan v. Smith [47 Ga.App. 646, 171 S.E. 169] supra, was decided in 1933, and Hosford v. Hosford, supra, in 1938. None of these cases have been overruled. In 1945 this State adopted and ratified a new Constitution which in Art. XII, Sec. I, declares the laws of general operation in this State. Par. V of this Article (Code Ann. 2-8005) provides, 'All judgments, decrees, orders, and other proceedings, of the several courts of this State, heretofore made within the limits of their several jurisdictions are hereby ratified and affirmed * * *.' Clearly, this provision of the Constitution approved these prior decisions and gave to them the force of law in this State, whatever the rule in Blackstone's day might have been. Since the Constitution of 1945 was adopted, other decisions, particularly Gross v. Lipton, supra [92 Ga.App. 38, 87 S.E.2d 438], have held that the gist of the action for alienation of affections is the loss of consortium, and this where adultery was not alleged.'

Art. XII, Sec. I, Par. V of the Constitution of 1945 (Code Ann. § 2-8005) can not properly be construed to 'freeze' decisions by the Court of Appeals and this court decided prior to the adoption of the Constitution. This is clearly demonstrated by the words in this paragraph not quoted by the Court of Appeals in its opinion, which follow immediately after the words, 'are hereby ratified and affirmed,' to wit, 'subject only to reversal by motion for a new trial, appeal, bill of review or other proceedings, in conformity with the law of force when they were made.' (Italics ours.)

Code § 6-1611 provides how prior decisions of this court may be overruled. This Code Section is from the act of 1896, and was of full force and effect at the time of the adoption of the Constitution of 1945. Neither the Court of Appeals nor the Supreme Court is prohibited by the Constitution of 1945 from overruling prior decisions rendered by each of such courts in the manner provided by law, and the Supreme Court by a majority decision may disapprove or overrule a decision of the Court of Appeals. 'The decisions of the Supreme Court shall bind the Court of Appeals as precedents.' Constitution, Art. V.i, Sec. II, Par. VIII (Code Anne. § VI, Sec. II, Par. VIII (Code Ann. §

The provision of the Constitution of 1945, Art. XII, Sec. I, Par. V, was included in the Constitution of 1877 as Art. XII, Sec. I, Par. VI. In construing this provision of the Constitution of 1877, in Mayor of Cartersville v. Lyon, 69 Ga. 577, 580(2), it was said that under the Constitution of 1868 a Justice of the Peace had jurisdiction to try cases of damage to realty as well as personalty, while under the Constitution of 1877 a Justice of the Peace had no jurisdiction as to damages to realty, but that since the case was tried before the adoption of the Constitution of 1877, it was not affected thereby.

The purpose of Art. XII, Sec. I, Par. V of the Constitution of 1945 (Code Ann. § 2-8005) was to protect rights acquired pursuant to prior decisions of a court under the Constitution of 1877. The opinion of the Court of Appeals, in so far as it purports to construe Art. XII, Sec. I, Par. V of the Constitution of 1945, is disapproved and overruled.

2. Counsel for the defendant (plaintiff in certiorari) has strongly contended in the application for certiorari that at the time the common law of England was adopted in this State (see Flint River Steamboat Co. v. Foster, 5 Ga. 194(5)), there was no cause of action known to the common law as alienation of affections, in the absence of adultery, abduction, harboring, or enticing the wife to separate from the husband. It is contended that if 'the tort of alienation of affections has been long recognized in Georgia,' as the Court of Appeals has stated in the opinion here under consideration, such recognition constitutes a usurpation of the legislative function.

In Blackstone's Commentaries (vol. 2, p. 112) it is said: '* * * the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause.' The case of Winsmore v. Greenback, Willes 577, 125 Eng.Repts. 1330, was an action for enticing away the plaintiff's wife. The petition was in four counts and in the second count it was alleged that 'the defendant maliciously and wickedly intending to injure the plaintiff, * * * and to alienate the affections of the wife from the plaintiff, * * * on the 8th day of August 1742 unlawfully and unjustly persuaded procured and enticed the said wife to depart and absent herself from the plaintiff.' (Italics ours.) In the opinion of the court it was said that 'procuring' is certainly 'persuading with effect,' and that 'the law will never suffer an injury and a damage without a remedy.'

In the full-bench decision of this court in Pavesich v. New England Life Insurance Co., 122 Ga. 190, 195, 50 S.E. 68, 70, 69 L.R.A. 101, with reference to an action based on the right of privacy, it was said in part: 'While neither Sir William Blackstone nor any of the other writers on the principles of the common law have referred in terms to the right of privacy, the illustrations given by them as to what would be a violation of the absolute rights of individuals are not to be taken as exhaustive, but the language should be allowed to include any instance of a violation of such rights which is clearly within the true meaning and intent of the words used to declare the principle.'

Whether or not 'enticing,' 'procuring,' or 'persuading with effect' includes 'alienation of affections' is not now an open question under the decisions of this court. In Graves v. Harris, 117 Ga. 817, 45 S.E. 239, decided a number of years before the Court of Appeals was created, this court recognized the validity of an action for alienation of affections, it being there held: 'The plaintiff in an action for alienating the affections of his wife and inducing her to commit adultery, is incompetent at the trial to testify as a witness to any fact.'

In the full-bench decision of this court in McAlpin v. Ryan, 150 Ga. 746, 105 S.E. 289, this court again recognized an action for alienation of affections, and it was there held that, where an action was brought in two counts, the first for alienation of affections, and the second for alleged criminal conversation, the defendant was a competent witness on matters alleged in the first count and compellable to testify, but was not a competent witness to testify with reference to the alleged criminal conversation.

In the full-bench decision in Sessions v. Parker, 174 Ga. 296, 162 S.E. 790, this court held: 'In this state a married woman who is living separate from her husband can maintain an action for damages against a third person for the alienation of her husband's affections and for the loss of her consortium.' In the full-bench decision of Tingle v. Maddox, 186 Ga. 757, 198 S.E. 722, this court said: '* * * a married woman may maintain an action for damages against a third person for alienation of the affections of her husband and loss of her consortium, even though she may be living at the time with her husband.'

These full-bench decisions by this court were binding on the Court of Appeals as precedents, and the Court of Appeals correctly held that: 'The petition as amended was sufficient to state a cause of action against the defendant for alienation of the affections of the plaintiff's wife,' when tested by general demurrer.

3. In division 4 of the opinion of the Court of Appeals, with reference to the special demurrers to paragraphs 9 and 12 of the petition as amended, it is stated that: 'While as a general proposition the rule admittedly is that where the facts alleged are within the knowledge of the party interposing the special demurrer, the opposing party is not required to plead such facts, we feel that an exception should be made to this rule in the...