Gibbons v. Maryland Casualty Co. , 114 Ga. App. 788 ( 1966 )

Per Curiam.

Thomas Gibbons, an employee of Savannah Sugar Refining Corporation, sustained an accidental injury on July 20, <1962, which arose out of and in the course of his employment. That injury resulted in his death on July 28, 1962. Dorothy Gibbons, his widow, for herself and for the ■minor children of Thomas Gibbons, filed a claim with the State Board of Workmen’s Compensation against the employer and its insurer. On the hearing before the deputy director, employment, wage rate, injury arising out of the employment, and death resulting therefrom being admitted by the employer, the sole issue presented by the evidence was whether the widow and the children involved were dependents of Thomas Gibbons within the meaning and requirements of the Workmen’s Compensation Act.

With respect to the widow, the evidence showed without dispute that she and the deceased employee were united by a ceremonial marriage performed pursuant to license on April 25, 1943; that they thereafter lived together as, and held themselves out to be, husband and wife; and that there were born during the period of their cohabitation two children, one of whom, Jesse, was at the time of the death of the employee a minor dependent upon him for support. With respect to this latter named child there is, and there can be, no dispute as to his right to share in the award of compensation entered on account of the death of Thomas Gibbons. We shall therefore pass to other matters about which there is dispute and the solution of which is somewhat more doubtful.

“The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased emplojme: (a) A wife upon a husband whom she had not voluntarily deserted or abandoned at the time of the accident.” Code § 114-414. As stated above, Dorothy Gibbons and Thomas Gibbons had duly entered into a solemnized marriage and had lived together as man and wife. No evidence was offered in any way tending to suggest that this marriage had ever been legally dissolved. The evidence did show, however, that for about fifteen years preceding his death Thomas Gibbons had lived in Savannah and she in McKeesport, Pa. Thus with respect to Dorothy Gibbons the issue revolved around whether she had voluntarily deserted or abandoned the employee at the time of the accident. The deputy direqtor found that the evidence did not show that the separation was a desertion or voluntary abandonment on her part. It is not contended that this finding was the result of any misapprehension on the part of the deputy director of any rule of law. Therefore, under well recognized principles, if this finding was in any way supported by the evidence, the judge of the superior court was not authorized to set it aside.

Dorothy Gibbons was the sole witness in the case. She testified both by deposition and in person at a hearing held before the deputy director. On both occasions she testified that the cause of the separation was that Thomas never prepared a place for them to live, that they had to live either at his mother’s house or at her mother’s house, and that they had “big in-law trouble.” She testified in effect that she had asked him on several occasions to provide her with a place to live separate and apart from the families, but that his parents always told him what to do and he did what they said to do, and that when they were living with her parents he went back and lived with his parents at a time when she was 2 or 3 months pregnant with Jesse. This was clearly sufficient evidence to authorize the deputy director to enter the award in favor of Dorothy Gibbons, the widow, even though there may have been evidence of probative value authorizing a contrary conclusion. On the other hand, there was no evidence, of probative value or otherwise, tending in any way to show that Dorothy Gibbons ever contracted a bigamous marriage. The evidence here in this regard, if it be of probative value to show anything, shows merely that Dorothy Gibbons repeatedly indulged in acts of adultery with various and sundry individuals after her separation from Thomas Gibbons. Such evidence standing alone is clearly insufficient to authorize a finding charging her with abandonment of Thomas Gibbons, and it follows that the judge of the superior court erred in setting aside the award of compensation to Dorothy Gibbons.

The deputy director found that after Dorothy Gibbons separated from Thomas Gibbons she bore five other children; that Thomas Gibbons was not the father of any of these five children; that in fact the testimony shows that each of the five children had a different father. As previously indicated, the oldest child, Nathaniel Gibbons, was over 18 years of age at the time of his father’s death and was therefore not a dependent entitled to compensation. Jesse Gibbons, whom the evidence showed without dispute to be the child of Thomas Gibbons, was at the time of the accident under the age of 18, and, based on findings in accordance with this undisputed evidence, the deputy director awarded compensation to Dorothy Gibbons at the rate of $25.50 per week for the use and benefit of herself and the minor child, Jesse Gibbons, said compensation to be paid for a period not to exceed 400 weeks. The employer and insurer appealed to the superior court on the ground that there was not sufficient competent evidence in the record to warrant the board in making the award and on the ground that the award was contrary to law. Abraham Brown (so named by his mother), Donnatha Gibbons, Reginald Gibbons, Howard Gibbons, and Leonard Gibbons, the remaining minor children of Dorothy Gibbons, also appealed to the superior court contending that the award was erroneous insofar as it denied them compensation because there was not sufficient competent evidence in the record to authorize the order and decree of November 5, 1965, and because the order was contrary to law.

As previously stated, Dorothy Gibbons was the sole witness for the claimants. All of the evidence came from her lips, either in the form of her testimony given orally on the hearing before the deputy director or in her deposition, or indirectly by way of information furnished by her to authorities to enable the preparation of birth certificates for her children. She was permitted to testify over objection, and the deputy director apparently gave credence to such testimony, that, with respect to each of the minor children who are appellants here, the father was one other than Thomas Gibbons. If this testimony constituted competent evidence, the award was authorized. If it did not constitute competent evidence insofar as the award denied compensation to these minor claimants, it was unauthorized.

The law as presently embodied in Code § 74-101, appears to have been first pronounced in Georgia in Wright v. Hicks, 12 Ga. 155 (2) (56 AD 451). On page 160, the court said: “The law now is universally understood to be clearly settled, that, although the birth of a child during wedlock, raises a presumption that such child is legitimate, yet, that this presumption may be rebutted, both by direct and presumptive evidence. And in arriving at a conclusion upon this subject, the jury may not only take into their consideration proofs tending to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity, by attending to the relative situation of the parties, their habits of life, the evidence of conduct and of declarations connected with conduct, and to any induction which reason suggests, for determining upon the probabilities of the case. Where the husband and wife have had the opportunity of sexual intercourse, a very strong presumption arises that it must have taken place, and that the child in question is the fruit; but it is only a very strong presumption, and no more. This presumption may be rebutted by evidence, and it is the duty of the jury to weigh the evidence against the presumption,, and to decide, as in the exercise of their judgment, either may appear to preponderate. . . . The presumption in favor of legitimacy, still holds, whenever it is not inconsistent with the facts of the case; and it is right that it should. It results from the principles of natural justice; it rests simply on the supposition of the virtuous conduct of the mother—a branch of that equitable rule which assumes the innocence of a party, until proof be brought of actual guilt. Yet, if such circumstances be in proof as clearly negative the truth of this presumption, the legal intendment will fail, and no general rule of evidence, of universal application, can be prescribed upon this subject. In every case, the fact must be determined by the particular circumstances. Where the husband and wife reside at a distance from each other, so as to exclude the possibility of sexual intercourse, there it is admitted that the presumption of legitimacy is at once rebutted.” This ruling of the Supreme Court was first codified as § 1736 and § 1737 of the Code of 1861 (1863), and is now embodied in substance in the 1933 Code as § 74-101. It doubtless has been reiterated in cases too numerous to cite, but see for example, Sullivan v. Hugly, 32 Ga. 316, and the comparatively recent cases of Ellis v. Woods, 214 Ga. 105, 108 (103 SE2d 297), and Stephens v. State, 80 Ga. App. 823, 825 (57 SE2d 493), where this rule was quoted and applied.

While it is obvious from the language employed by the Supreme Court in the Wright case, 12 Ga. 155, supra, that the presumption of legitimacy, though a very strong one, is not conclusive, and this presumption may be overcome by evidence showing, inter alia, the habits of life and relative situations of the parties, their conduct and declarations connected with conduct, such as, for example, in birth certificates, or the impossibility of access, the question that remains to be decided is what evidence is competent and sufficient to rebut this presumption and to authorize a finding contrary thereto. Wright v. Hicks, 15 Ga. 160 (60 AD 687); Mims v. State, 43 Ga. App. 100 (1) (157 SE 901).

It is true that where the problem has been considered the courts of a majority of the states have followed Lord Mansfield’s declaration in Goodright v. Moss, 2 Cowp. 591 (1777) (98 Eng. Reprints 1257), that it would be indecent and immoral to permit parents of children to “bastardize the issue born after marriage” by testifying themselves as to non-access of the husband, but there has been a trend among the states to repudiate the rule either by statute or by court decision. See a discussion of the matter and a citation of the cases in 7 Wigmore on Evidence (3rd Ed.), 358, 368, §§ 2063, 2064; 10 AmJur2d 869, Bastards, § 33; Anno. 60 ALR 381; 68 ALR 421; 89 ALR 912; 4 ALR2d 567. Wigmore asserts (p. 369) that “these high-sounding ‘decencies’ and ‘moralities’ are mere Pharisaical afterthoughts, invented to explain a rule otherwise incomprehensible, and lacking support in the established facts and policies of our law. There was never any true precedent for the rule; and there is just as -little reason of policy to maintain it.” Echoing Wigmore, the Supreme Court of Mississippi in Moore v. Smith, 178 Miss. 383, 393 (172 S 317) asserted that the rule “would protect an unfaithful wife, and also her paramour, both of whom had grossly violated the matrimonial relation; would close the mouth of the injured husband, and force him to remain tied to an unfaithful wife, and to acknowledge and support a child which is not, in fact, his. To adopt a rule causing such a result, under the guise of protecting the matrimonial relation, would press the relation to the breaking point, and the maxim, ‘nothing too much,’ applies everywhere and always. That protection of the matrimonial relation is not the basis on which the exclusion of the evidence here in question is demonstrated when we remember that husband and wife are competent witnesses to the fact of their non-access when the legitimacy of a child is not in issue. . .” Cf. Pinnebad v. Pinnehad, 134 Ga. 496 (68 SE 73); Hinkle v. Hinkle, 209 Ga. 554, 556 (74 SE2d 657). Access is generally a matter within -the confines of the bedroom. Third-party evidence is hardly as dependable as that of those who may have been present. No person is in better position to know the truth as to parentage than the mother.

Lord Mansfield’s rule is not binding on the courts of this state since it did not come until 1777; we adopted only the common law and statutes of England which were of force May 14, 1776. Grimmett v. Barnwell, 184 Ga. 461, 464 (192 SE 191, 116 ALR 257). All parties to any action or proceeding were made competent to testify as to any relevant matter or question by the Act of 1866 (Ga. L. 1866, p. 138), now found in Code § 38-1603, with stated exceptions. The same Act made provision, however, that it would not apply to any suit, action or proceeding in any court, instituted in consequence of adultery, or for the breach of promise of marriage, and that provision became Code § 38-1606. In 1935 (Ga. L. 1935, p. 120) it was amended to eliminate the provision relating to actions for breach of promise, and in 1951 (Ga. L. 1951, p. 596) a proviso was added making one charged with adultery competent to testify as to his or her innocence.¹ This Code section is not applicable here because, (a) the proceeding is not brought in any court—it is before an administrative body, and (b) it was not instituted in consequence of adultery—it was instituted in consequence of an employee’s death from accidental injury. Arnold v. Arnold, 141 Ga. 158 (161 SE 652).

The policy of Georgia law is to admit evidence, even if its admissibilfiy is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood. Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784); Carroll v. Hayes, 98 Ga. App. 450, 452 (105 SE2d 755); Clemones v. Alabama Power Co., 107 Ga. App. 489, 494 (130 SE2d 600). “The object of all legal investigation is the discovery of truth.” Code § 38-101.

Under the rule enunciated in Wright v. Hicks, 12 Ga. 155 and 15 Ga. 160, supra, and the provisions of Code Ann. § 38-1603, the widow, Dorothy Gibbons, was competent to testify concerning her conduct, habits of life, etc., including her cohabitations with other men who, in her opinion, became fathers of her children. Her statements to the vital statistics bureau as reflected in the birth certificates, concerning the parentage of the children, were also admissible. This raised a question of fact as to whether some of the children were legitimate, which the board was authorized to resolve, and did resolve. The findings in that respect are supported by evidence and will not be disturbed.

The judgment of the superior court is reversed insofar as it sets aside the award of compensation to the widow, Dorothy Gibbons, but is otherwise affirmed.

Bell, P. J., Hall, Deen and Quillian, JJ., concur. Felton, C. J., and Eberhardt, J., dissent as to Division 2. Frankum, P. J., Jordan and Pannell, JJ., dissent as to Division S.

1 Obviously to avoid the ruling in Weeks v. Weeks, 160 Ga. 369 (3) (127 SE 772). It did not have the effect of rendering a party competent to testify concerning the adultery of an opposite party (Peacon v. Beacon, 197 Ga. 748 (30 SE2d 640)), and, indeed, it may require a repeal of Code Ann. § 38-1606 to make a party competent to testify concerning the adultery (other than denying his own guilt) of either party in a court action instituted in consequence thereof, particularly cases involving issues of filiation. Section 38-1606, being an express exception to § 38-1603, is to be given a narrow construction and will not be broadened beyond its specific terms. “Where there is an express exception it is the only limitation on the operation of the statute, and no other exceptions will be implied.” 2 Sutherland, Statutory Construction (1966 Supp.) § 4936. Accord: Washington v. Atlantic C. L. R. Co., 136 Ga. 638, 644 (71 SE 1066); Barnett v. D. O. Martin Co., 191 Ga. 11, 14 (11 SE2d 210, 131 ALR 725)'; Williams v. Seaboard Air-Line R. Co., 33 Ga. App. 164, 165 (125 SE 769); Dalton Brick &c. Co. v. Huiet, 102 Ga. App. 221, 223 (2) (115 SE2d 748).