Graves v. Harris ( 1903 )

Candler, J.

This was an action for damages on account of the alienation of the affections of the wife of the plaintiff. The petition alleged various acts of illicit intercourse between the defendant and the plaintiffs wife; and taken as a whole, it is clearly a suit growing out of the alleged continued adultery of the two. The jury returned a verdict for the plaintiff for $500. The defendant made a motion for a new trial, which was overruled, and he excepted. During the progress of the trial the plaintiff was put on the stand as a witness in his own behalf, not to prove any act of adultery on the part of his wife, but to disprove the contention of the defendant that he had consented to and connived at the adultery of his wife with the defendant and other parties. His testimony was objected to on the ground that a husband is not a competent witness to prove or disprove the adultery of his wife. The objection was overruled and the testimony admitted. In this we are satisfied that the court erred. ' Up to the passage of the evidence act of 1866 (Acts 1866, p. 138), no party to a suit was competent to testify in his own behalf. That act changed the common law, and made parties competent to testify except in certain specified cases. One of these exceptions was to the effect that no party to any action, suit, or proceeding in any court in this State, instituted in consequence of adultery, should be permitted to testify. As has been seen, the present case comes clearly within that exception, and for that reason the plaintiff was not competent to testify to any fact whatever. His mouth was absolutely closed. In the case of Sloan v. Briant, 56 Ga. 59, it was held: “An action brought by a woman against a married man to recover money under a contract, made before cohabitation, to pay her $1,000.00 and give her a house and lot in case of the birth of a child, though repeated and ratified often after the birth of the child, is a suit instituted in consequence of adultery, and in such a suit the woman is incompetent to testify.” Said Judge Jackson in that case: “ Before the act of 1866, there can be no doubt that she would not have been a competent witness. She is a party, and that would have excluded her evidence.” The act of 1866 expressly provided that nothing therein contained should apply to any action, suit, or proceeding or bill in any court of law or equity, instituted in consequence of adultery. The exception, as was said in the case above cited, “is as broad as language can make it. Any action, or suit, or proceeding, or bill, in any court, are the terms. Any, as if to embrace every possible case; any, to apply to every court.” In the present case the adultery of the plaintiffs wife with the defendant was the cause; the alienation of her affections the sequence. “Whether it be the immediate or the remote cause is immaterial, if the suit be the consequence of adultery as the cause. The words, ‘ in consequence/ apply as well to the initiatory as to the proximate cause of this suit.” See also Thomas v. State, 115 Ga. 235.

The motion contains other grounds, but none of them are of sufficient merit to require the grant of a new trial. In the interest of decency we refrain from a discussion of the evidence, as we have no desire to contribute more than is necessary to the unclean literature of this branch of the law. To the everlasting honor of our civilization be it said that litigation of this character has been exceedingly rare in this State, and precedent is consequently not abundant. It is to be hoped that we will not again have need of precedent on this subject. Judgment reversed.

All the Justices concur.