Colson v. Huber

The court did not err in sustaining the demurrer to the petition for any of the reasons set forth in the opinion.

DECIDED SEPTEMBER 10, 1946. REHEARING DENIED OCTOBER 3, 1946. The plaintiff assigns error on a judgment sustaining a general demurrer to her petition. The case being an unusual one, we shall set forth the essential allegations of the petition as well as the demurrer. The petition reads:

"Second: The [defendant] is the father of two illegitimate sons, which your petitioner bore for him . . on November 4, 1933, and . . June 23, 1935.

"Third: For the support, maintenance, and education of the said two boys, the [defendant] is indebted to your petitioner up to the 23rd day of March, 1945, in the sum of Nine Thousand One Hundred Eighty-Nine and No/100 ($9,189.00) Dollars, both in accordance with the obligation placed upon him by law in such case, and in accordance with his express promise and obligation to your petitioner.

"Fourth: Defendant's express promise to your petitioner was to support, maintain, and educate both of said children and to pay your petitioner for her services in connection with the rearing of such children.

"Fifth: While the exact amounts he was to pay were never agreed upon, the reasonable value of your petitioner's services in caring for one child and maintaining him was at least Twenty Dollars per week, and for the two children it was at least Twenty-Five Dollars per week.

"Sixth: Since the birth of the first child on November 4, 1933, the [defendant] has actually paid to your petitioner the sum of Six Dollars per week by handing her a receipt for house rent in the sum of Three and 50/100 Dollars per week and by making up the balance of said sum of Six Dollars in cash. For clothing the said two boys he has paid to your petitioner the sum of Fifty Dollars per year. He also gave to your petitioner the sum of Twenty Dollars to pay the doctor's bill for attending her at the birth of each of said children. He also paid a hospital bill in the sum of Fifty Dollars, incurred by [one child] at the time of an accidental injury to his leg. But defendant's regular payments terminated on May 6, 1944, since which time he has paid to her the sum of only Thirty Dollars by way of meeting his said obligations. . .

"Eighth: Petition further shows that she, with her husband and two small children, moved to Moultrie in July, 1931, when they rented from defendant that dwelling house known as 216 Fourth Avenue, N.E., where she has continuously resided to this date. The defendant, . . whom she had not previously known, began to make improper advances towards your petitioner before she and her family had lived in Moultrie more than two weeks, which your petitioner failed and refused to encourage in any way.Petitioner continued to live with her husband, . . , until hisdeath, which occurred December 7, 1940. [Italics ours.]

"Ninth: Early in September, 1931, petitioner's husband was unable to obtain regular employment because of the general financial depression then prevailing throughout this country. Consequently, he became unable to pay house rent. The [defendant] thereupon threatened to throw your petitioner and her husband and children out into the streets, but before doing so he urged your petitioner to call by his office and talk the matter over.

"Tenth: On going to defendant's office to discuss with him the matter of more time in which to pay the house rent, he again made his improper advances towards your petitioner and assured her that if she would yield to his lustful embraces she and her family would not be thrown out of their dwelling, but if she longer persisted in her refusal, she and her family would be thrown into the streets. In that situation your petitioner did then and there, in September, 1931, yield to his lustful embraces and allow him to have sexual intercourse with her.

"Eleventh: Up to the time of that visit to the defendant's office, your petitioner had lived a virtuous life, in that she had never sexually known any man other than her husband.

"Twelfth: After that visit to defendant's office, in September, 1931, he required your petitioner to repeat her visits to him, but he never thereafter collected any rent on the said dwelling house or threatened to throw your petitioner and her family into the streets.

"Thirteenth: On one of petitioner's visits to the defendant's office required by him, in the month of February, 1933, both your petitioner and the defendant believed, and thought they knew, that your petitioner had become pregnant by reason of their such association. Subsequent events, such as the missing of her monthly periods, which would otherwise have followed, convinced both plaintiff and defendant that their belief as to her pregnancy was correct. Defendant thereupon begged your petitioner to go on and have a baby for him, promising that if it were a boy, he would stand all expenses in supporting, maintaining, and educating the child and would pay her well for her services in nursing, guarding, and attending to the child, and would make a banker, a doctor, or a lawyer out of the child.

"Fourteenth: That act of sexual intercourse between plaintiff and defendant in February, 1933, resulted in the birth of petitioner's son . . on November 4, 1933.

"Fifteenth: Again, in September, 1934, while your petitioner was on a visit to the defendant in his said office, as required by him for another act of sexual intercourse, both plaintiff and defendant again believed, and thought that they knew, that she had again conceived and become pregnant with his child. Subsequent events confirmed your petitioner's second pregnancy, as it had confirmed her pregnancy with the child [born on November 4, 1933].

"Sixteenth: Upon learning of a certainty that your petitioner was again pregnant by him, the defendant again begged your petitioner to go on and have the baby, promising that if it were a boy, he would support, maintain, and educate the child, and would make a banker or a doctor or a lawyer of him, and would pay your petitioner well for her services in nursing and rearing the said child. The child which he then referred to was the baby born on June 23, 1935.

"Seventeenth: Both of said children were named by and for the defendant. . . The defendant did not, however, at any time adequately support or maintain either of his said sons, nor did he compensate your petitioner for her services in caring for and properly rearing the said children. But in 1937, when your petitioner took a job with the Riverside Manufacturing Company, in order to work and earn the money properly to provide for herself and said children, the defendant saw your petitioner, complained at her working, instead of staying at home and looking after the children, and again promised that he would adequately support and maintain both her and the two boys if she would give up her job and stay at home to take care of the boys. At his insistence she quit that job after working at it for about three weeks. The defendant did not, however, keep his promise to increase his weekly allowance to petitioner.

"Eighteenth: During all of those years, from the birth of [the first son] until the defendant's own illness, in the early part of May, 1944, he was a constant visitor in your petitioner's home, holding his said two boys on his lap, fondling them as any loving father might do and at times having his picture made with them, without taking or showing any interest whatever in any other member of your petitioner's family then or at any other time. By reason of all the facts and circumstances aforesaid, your petitioner now says that the defendant should be required by law to support and maintain his said two illegitimate sons and to compensate your petitioner for her services in taking care of the said children after they had been born."

The demurrer reads: "1. That said petition sets forth no cause of action against this defendant.

"2. That under the facts alleged in said petition, it affirmatively appears that the plaintiff is not entitled to recover the sum sued for or any sum whatsoever." Counsel for the plaintiff in their argument cite and rely on the provisions of the Code, §§ 74-201, 74-202. Section 74-201 reads: "An illegitimate child, or bastard, is a child born out of wedlock, and whose parents do not subsequently intermarry, or a child the issue of adulterous intercourse of the wife during wedlock, or a child who is not legitimate within the meaning of § 74-101."

Section 74-202 reads: "The father of an illegitimate child shall be bound to maintain him. This obligation shall be good consideration to support a contract by him. He may voluntarily discharge his duty; if he shall fail or refuse to do it, the law will compel him."

The first of these two sections defines what children are illegitimate. The second section deals with the obligation of the father to support such illegitimate children. We might in this connection call attention to the provisions of § 74-101, which deals with the question of what children are legitimate, the presumption of legitimacy, and legitimation by marriage of parents. That section reads: "All children born in wedlock, or within the usual period of gestation thereafter, are legitimate. The legitimacy of a child thus born may be disputed. Where possibility of access exists, except in cases of divorce from bed and board, the strong presumption is in favor of legitimacy, and the proof should be clear to establish the contrary. If pregnancy existed at the time of the marriage, and a divorce is sought and obtained on that ground, the child, though born in wedlock, is not legitimate. The marriage of the mother and reputed father of an illegitimate child, and the recognition of such child as his, shall render the child legitimate; and in such case the child shall immediately take the surname of his father."

We also call attention to the Code, § 74-105, which deals with the obligation of a father to support his legitimate child, which reads: "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child."

Thus it will be seen that the two sections of the Code, cited by counsel for the plaintiff in error, deal with illegitimate children and the duty of the father to support them, while the other two sections deal with legitimate children and the duty which their father owes them. Counsel for the plaintiff in error cite a number of decisions of the Supreme Court and of this court in support of the allegations of the petition. The cases cited are: Wright v. Hicks, 12 Ga. 155 (4) (56 Am. D. 451);Hargroves v. Freeman, 12 Ga. 342; Davis v. Moody,15 Ga. 175; Jackson v. Finney, 33 Ga. 512; Nixon v.Perry, 77 Ga. 530 (3 S.E. 253); McLoud v. State,122 Ga. 393 (2) (50 S.E. 145); Jones v. State, 11 Ga. App. 760 (76 S.E. 72); Franklin v. Ford, 13 Ga. App. 469 (79 S.E. 366); Francis v. Barnwell, 25 Ga. App. 798 (105 S.E. 165); Morris v. Dilbeck, 71 Ga. App. 470 (31 S.E.2d 93). The first Supreme Court case cited by the plaintiff, Wright v.Hicks, supra, was again before the Supreme Court in Wright v.Hicks, 15 Ga. 160 (60 Am. D. 687). We have read carefully all these decisions and many more on the question before us. Without discussing in detail the facts and principles of law involved and decided in not only the cases cited but in all other cases of our appellate courts which we have read, we find that they deal with two questions: (1) the right of the legitimate lineal descendants of the father to contest the right of an alleged illegitimate child, even though born in wedlock, to inherit from the father, on the ground that, being an illegitimate child as to the father, such illegitimate child could not inherit from the father; and (2) the right of a mother to enforce a contract made with the putative father to support the child born out of wedlock. It does not appear, under the facts of any of the cases in the latter class of decisions, that the mother of a child presumed to be legitimate ever received judicial sanction to bastardize her own child which was born during coverture. The provisions of the statute which we have above quoted, with reference to the illegitimacy of a child resulting from adulterous intercourse, have been applied only to the rules of inheritance; and the legal obligations of the father of an illegitimate child to support it, so far as the decisions show, have been applied only to the father of an illegitimate child, the mother of whom was not living with her husband during the period of gestation and birth of the child. The rule of law set forth in bastardy proceedings under our Code, Chapter 74-3, is founded upon the principle that the illegitimate child may become a charge on the public, and is designed primarily as a means to force the father of such illegitimate child to support it. The bastardy laws are not, as able counsel for the plaintiff contend, based on the principle of the welfare of the child. The State makes a large outlay of investment in eleemosynary institutions to look to the welfare of unfortunate children. So do our religious institutions, which are in finality the public; and private individuals as well are concerned in order to insure that no such unfortunate child shall be condemned to starvation. To this end the law also provides that even the custody of such children may be taken from the father and mother and placed where the child will receive the most benefit. But this is not under consideration. On this point what we mean to say is that the following enthusiastic argument of counsel for the plaintiff is erroneous and has no application to the facts of this case. That argument is: "Whatever the law may now be in other States, whatever it may once have been in England, it is certain that the statute law of Georgia now looks, and has long looked, primarily to the welfare of the child, never condemns a bastard to starvation, never penalizes any child for the sins of its father or its mother, and never relieves the father of his moral obligation to support his illegitimate child, but rather gives to that moral obligation the binding and compelling force of emphatic statutes."

As stated above, we have been unable to find any case where there has been judicial approval of arrangements such as the allegations of this petition show. We do find, however, decisions that an arrangement of this kind can not have judicial approval under the principle of public policy. We find one case the facts of which are almost on all fours with this one, from a court of a State which stands high in judicial respectability. That case is Flint v. Pierce, 136 N. Y. Supp. 1056. Before we quote from this decision and comment upon it, we desire first to quote from annotations in 39 A.L.R. 446 (c): "A promise by the father of an illegitimate child to provide for the child, which rests partly or wholly on the consideration of future illicit intercourse with the mother, is contrary to public policy and void. Steele v. Crawford (1923) 197 Ky. 798 (248 S.W. 197); Trovinger v. M'Burney (1825) 5 Cow. (N. Y.) 253; Crawford v. Gordon (1883) 9 Ohio Dec. Reprint, 160.

"Likewise, it has been held that an agreement with plaintiff, made in part as an inducement to her to enter upon a career of illicit intercourse with the defendant, to allow her a liberal sum of money for the support and maintenance of a child which he desired her to bear him, is invalid as against public morals. Randolph v. Stokes (1908), 125 A.D. 679 (110 N. Y. Sup. 20).

"And merely because the mother did not in fact cohabit with the father after the making of an agreement between them for the support of their illegitimate child, based partly on the consideration that the mother would continue to cohabit with the father, makes no difference, as it is the making as well as the performance of the agreement that the law abhors. Crawford v. Gordon (Ohio) supra.

"So, a promise by the putative father to pay for the board of a woman and her bastard child is void if the purpose of the parties, expressly or tacitly, was to facilitate a continued state of cohabitation between the promisor and the woman, although knowledge of the promisee of the previous cohabitation between the promisor and the woman is not a fact from which it could be inferred that the purpose of the contract was to facilitate future cohabitation. Trovinger v. M'Burney (1825) 5 Cow. (N. Y.) 253, supra."

Again reverting to Flint v. Pierce, supra, we quote from the opinion, page 1058: "(2, 3.) The fact that any person was born during the continuance of a valid marriage between his mother and any man is conclusive proof that he is the legitimate child of his mother's husband, unless it can be shown that his mother and her husband had no access to each other at any time when he could have been begotten; regard being had both to the date of the birth and to the physical condition of the husband. Cross v. Cross, 3 Paige Ch. 139 (23 Am. D. 778); Van Aernam v. Van Aernam, 1 Barb. Ch. 375; Caujolle v. Ferrie, 23 N.Y. 90; 1 Greenleaf, § 28. All authorities agree that the plaintiff would be incompetent to establish non-access of her husband." Division 4 of the same opinion reads: "No authority has been cited or found that bears on the question presented. Cases of divorce or actions by unmarried women are of no aid in solving the problem; bastardy proceedings instituted by poor authorities are of no help; decisions that the promise by a putative father of an illegitimate to pay for its support can be enforced are of no avail. Because it has been held that a woman unmarried at the time of the birth of her illegitimate child can enforce the agreement to support it, furnishes no reason for holding that a married woman can enforce an agreement made by the putative father to support her child born during wedlock. All the cases cited are claims, actions, proceedings, etc., by single women to enforce agreements against putative fathers of their illegitimate children, or bastardy proceedings brought by poor authorities, or divorce cases. They are all based upon some statute or founded upon contract the enforcement of which does not offend public policy. The right of a married woman to bastardize her own child born in lawful wedlock, and thus violate good morals, domestic decency, respectability of married life, security of the home, and the sacredness of marital motherhood, was not involved. A single woman has no husband to support her children; she has no husband to support herself; she has no claims upon the father of her children for her own support. The agreement of a father to pay a single woman for the care and support of their child does not infringe upon the rights of any husband. To say that a married woman may enjoy the marital obligation of her husband to support herself and her children and at the same time compel a paramour to perform his agreement to pay her $30 a month during her lifetime for the support of a child alleged to have been begotten by the paramour during wedlock with her husband, is pretty nearly saying that a woman may have two husbands and compel them both to support her; it is saying that a woman may compel two men to support her, one because of a marriage ceremony, and another because her violation of those marriage vows has furnished a good consideration for some other man's promise to support her. For 23 years after the birth of the alleged illegitimate this plaintiff had a husband who under the law and the admitted facts was bound to support her. He died in 1896 her lawful husband. It is now 39 years since the birth of the child that for that time has been presumed to be the legitimate son of the plaintiff and her husband, Alonzo Flint. The name Howard Flint was given to their son by plaintiff and her husband. To permit the enforcement of this alleged contract under the circumstances is so shocking to good morals and decency that it should be done only by the compelling force of well-recognized authority.

"In the absence of such precedent, the conclusion is reached that good morals and public policy forbid that plaintiff be permitted to assert the illegitimacy of her son, born in lawful wedlock, to furnish an alleged consideration for the contract sued upon; that the legitimacy of her own son is so conclusively presumed that she can not rebut it and thereby secure a cause of action."

The most pertinent and direct application of the opinion in this case, as it applies to the allegations of the instant case and the law of our State, is the fourth division of the opinion (part of which we have quoted above) and headnote 4 thereon. We quote headnote 4: "The mother of a child born during wedlock is precluded by public policy from asserting its illegitimacy to show consideration for a contract with a man other than her husband, providing for the payment of a certain monthly sum for its support." We will not quote the entire opinion in division 4 of that case, but we do invite attention to it, and particularly to the part quoted hereinbefore. The facts in Flint v. Pierce, will be found almost on all fours with the facts in the case at bar, the main difference being the difference in the period of time between the beginning of the illicit arrangements and the time thereafter when suit was instituted by the mother against the putative father. In the Flint case such time was 39 years, and in the instant case 13 years.

While we have above set forth the allegations of the petition, we wish in this connection to call specific attention to the allegations in paragraph 2 that one of the illegitimate children was born on November 4, 1933, and the other one on June 23, 1935; also, to the allegations in paragraph 8 of the petition that the defendant began to make improper advances toward the plaintiff within two weeks after she had met him and she and her husband and other members of the family had rented a house from him; and that the plaintiff continued to live with her husband in the house until his death on December 7, 1940. The petition further reveals that the plaintiff with her family moved into the defendant's house in July, 1931, and the illicit arrangements of the plaintiff and the defendant were consummated in September of the same year; and that she continued this immoral arrangement with the defendant until May, 1944, during a period of nine years while the plaintiff was living with her husband, and approximately four years after her husband's death, the relations ending in the early part of May, 1944, when the defendant became ill.

Admitting all allegations of the petition which are well pleaded, the law requires that the petition be construed most strongly against the plaintiff. In this view, the arrangement on the part of the plaintiff shows only an arrangement of continuing meretricious traffic in the privacy of her person and the virtues and fidelity of her home while living with her husband, and then four years after her husband's death, seeking for a monetary price to bastardize her two children and take from them their good name. It is our confirmed opinion that the law was never intended to sanction such a situation, nor will good morals and public policy permit approval by the courts. The prosecution for bastardy or a consideration from the putative father to the mother of the illegitimate child for support is held to be based upon a valuable consideration and enforceable. This is quite a different thing from a promise to pay for future and continuing immoral relations with a married woman living with her husband.

The court did not err in sustaining the demurrer to the petition for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.