Summary
In Peacon v. Peacon, 197 Ga. 748, 753 (30 S.E.2d 640), this court said: "The Act of 1866, supra (Code § 38-1606), plainly provides that nothing contained therein shall apply `to any action, suit, or proceeding in any court, instituted in consequence of adultery.' The legislature enacted that, in changing the rule at common law so to permit a party to testify in a suit brought by himself, the common-law bar to his being a witness in `any action, suit, or proceeding in any court, instituted in consequence of adultery' is expressly retained.
Summary of this case from Bartlett v. BartlettOpinion
14851.
JUNE 8, 1944.
Divorce, etc. Before Judge Franklin. Richmond superior court. February 10, 1944.
Isaac S. Peebles Jr., for plaintiff in error.
B. B. McCowen, contra.
1. Where a woman prior to her marriage falsely and fraudulently represented to her prospective husband that he was the father of a child with which she was then pregnant, such representation would not be ground for the grant of a divorce based upon fraud as defined in the Code, § 30-102 (5), where it is shown that he married her to avoid a prosecution for seduction.
2. In an action brought by a husband for divorce based on the alleged adultery of his wife, he is incompetent to testify to any fact tending to show adultery on the part of the wife.
( a) While, generally, "The testimony of an incompetent witness, if it is material, when received without objection, is of probative value, and will be considered and given such weight as the jury deems it entitled to, in view of his interest and other circumstances," a husband is absolutely disqualified and barred by public policy, under the Code, § 38-1606, from testifying as to the adultery of his wife, and such statutory prohibition can not be waived by the failure of the wife to object to such incompetency.
3. Eliminating from the evidence the incompetent testimony of the husband, the verdict returned by the jury in his favor was not authorized, and the court erred in overruling the motion for new trial.
No. 14851. JUNE 8, 1944.
Eugene C. Peacon brought an action of divorce against Della B. Peacon, alleging that in August, 1940, he and the defendant entered into a marriage ceremony in Augusta, Georgia, and were husband and wife; that he was induced to marry her by the practice of fraud and false statements that the child of which she was then pregnant was his and the threat by her of prosecution, while in fact she was a loose woman and foisted herself upon him, falsely claiming that the child, subsequently born, was his own. It was alleged that the petitioner was thus fraudulently and by the deception practiced on him forced to marry the defendant, but that he has never lived or cohabited with her since the marriage, and that at the time of filing the petition, on October 19, 1942, she was again pregnant by some man unknown to the petitioner; that the petition for total divorce was brought on the aforesaid ground and on the further ground of adultery on the part of the defendant since said marriage, as evidenced by her pregnancy. The defendant answered, denying the material allegations of the petition, and set up that she was seduced by the petitioner, and was at all times a faithful wife to him.
It appears that the petitioner obtained a first verdict, and on the second trial he testified that he was placed in jail at the instance of the defendant, and the only way he knew how to get out was to marry her; that five months later she swore out a warrant against him for the support of the child with which she was pregnant at the time of the marriage; that when he went in the army she dropped the proceeding; that he never spent a night under the roof with her, and never had sexual intercourse with her; that he left Augusta for Florida on January 10, 1942, and never returned until August 3, 1942, at which time he went to see the defendant. He testified that "I do not remember being here in May, 1942;" that he thought the first baby was born in October, 1940, two months after he married the defendant; and that he had not been going with her, and had not had intercourse with her in his life.
A birth certificate was introduced in evidence, showing that a child was born to the defendant. The certificate was dated February 20, 1943, showing that a total of two children had been born alive to the mother, and that the last was of a full-term pregnancy.
Mrs. Julia Bailey, the mother of the petitioner, testified that the petitioner went off in January and did not come back until August, and, "I ought to know because I am his mother, and he comes to my house when he comes and he certainly wouldn't come down here without coming to my house. He did not come in May."
A brother of the defendant testified that the petitioner came to his home occasionally after the marriage with the defendant, and would spend the night there. He remembered that the petitioner was home on furlough from Florida in May, 1942, and remembered it because the witness was then celebrating his birthday, and came to town to see his sister, the defendant, and his mother, and the petitioner was there and spent the night there, but "I never saw them in bed together, as I had too much respect for my sister to go in the room where she and her husband were."
The defendant testified that she married the petitioner, she believed, in January, but did not remember the exact date; that he had been going with her and promised to marry her before he actually did; that she had intercourse with him and no one else and gave birth to a baby a few months after the marriage, and the petitioner was the father of the child; and that he was in Augusta during May, 1942, while on a furlough, and he slept with her during his visit and is the father also of the second child.
The jury returned a verdict for the petitioner, and granted the defendant $20 a month for the support of the first child, as prayed in her answer, at the time of which verdict the second child had not been born. The defendant filed a motion for new trial on the general grounds, and by amendment added several special grounds. The court overruled the motion and the defendant excepted.
1. Under the allegations of the petition as to fraud practiced upon the petitioner by reason of pregnancy at the time of marriage, no verdict on that ground could legally have been returned in favor of the petitioner, and the court so informed the jury. As ruled in Owens v. Owens, 157 Ga. 397 (2) ( 121 S.E. 337), "Where a woman prior to her marriage falsely and fraudulently represented to her prospective husband that he was the father of a child with which she was then pregnant, such representation would not be ground for the grant of a divorce based upon fraud as defined in the Civil Code, § 2945, par. 5 [Code of 1933. § 30-102 (5)], where the petition for divorce alleges that he married her to avoid a prosecution for seduction." See also Cox v. Cox, 159 Ga. 862 (2) ( 127 S.E. 132). The pregnancy which under the above Code section constitutes a ground for divorce is "pregnancy of the wife, at the time of the marriage, unknown to the husband." The petition and testimony of the petitioner show that he was proceeded against and placed in jail under a seduction charge, necessarily involving pregnancy, and he can not be said to have been in duress or that the marriage was induced by fraud when, while being put on notice of her pregnancy, he married the defendant for no other reason than to prevent a prosecution for the offense of seduction. It follows that if a verdict was authorized for the petitioner, it would of necessity have to be based upon the other alleged ground of adultery of the wife.
2. It is contended by the plaintiff in error that the action was based on the alleged adultery; that the petitioner, the husband, was incompetent to testify; and that, disregarding his testimony, the evidence did not authorize the verdict. The second special ground of the motion for new trial is a mere elaboration of the general grounds. The third special ground complains that the court erred in submitting to the jury the question whether or not the petitioner had established to the satisfaction of the jury by a preponderance of the evidence that the defendant was guilty of adultery, whereas the court should have charged that the issue should be proved by a preponderance of competent evidence. The fourth special ground assigns error on the failure of the court to charge, without a request, that the jury should disregard any testimony of the petitioner having a tendency to establish adultery on the part of the defendant. All of these grounds are controlled by the same principle of law and will be considered together.
The incompetency of the husband to testify against his wife existed before the evidence act of 1866 (Ga. L. 1866, p. 138), which removed the incompetency of parties to appear as witnesses in suits brought by themselves except in certain specified instances. These provisions of the act appear in section 1, 2, and 4 thereof, and, as amended by subsequent acts, are codified in the present Code as §§ 38-1603, 38-1604, 38-1605, and 38-1607. Section 3 of the act provides that, "Nothing herein contained shall apply to any action, suit, or proceeding, or bill, in any court of law or equity instituted in consequence of adultery, or to any action for breach of promise of marriage." By the act of 1935 (Ga. L. 1935, p. 120), the words "or to any action for breach of promise of marriage" were stricken from the Code of 1910, § 5561, as the third provision of the act was then codified, and the remaining portion is now codified in the present Code as § 38-1606. This provision as to incompetency has been reaffirmed in many decisions of this court, among which are: Cook v. Cook, 46 Ga. 308; Woolfolk v. Woolfolk, 53 Ga. 661; Howard v. State, 94 Ga. 587 ( 20 S.E. 426); Graves v. Harris, 117 Ga. 817 ( 45 S.E. 239); Bishop v. Bishop, 124 Ga. 293 ( 52 S.E. 743); Anderson v. Anderson, 140 Ga. 802 ( 79 S.E. 1124); Arnold v. Arnold, 141 Ga. 158 ( 80 S.E. 652); Stodghill v. Stodghill, 145 Ga. 101 ( 88 S.E. 676); Evitt v. Evitt, 160 Ga. 497 ( 128 S.E. 661); Lowry v. Lowry, 170 Ga. 349, 357 ( 153 S.E. 11).
The incompetent testimony, which was not here objected to, can not be disregarded merely by analogy to the rule as to hearsay testimony which, having no probative value, is not entitled to consideration. See, as to hearsay evidence, Suttles v. Sewell, 117 Ga. 214, 216 ( 43 S.E. 486); Estill v. Citizens Southern Bank, 153 Ga. 618, 625 ( 113 S.E. 552); Summerour v. Fortson, 174 Ga. 862, 873 ( 164 S.E. 809). As pointed out in Berry v. Brunson, 166 Ga. 523, 532 ( 143 S.E. 761), the basis for the rule is that hearsay evidence is without the sanction of an oath, and the party against whom it is offered can not cross-examine the one who made the statement, and for these and other reasons it is without probative value. In that case the defendant was allowed to testify without objection as to transactions and communications with the intestate of the opposite party. Such testimony was, of course, incompetent, but it was nevertheless of probative value, for which reason this court held that, if the opposite party desired to take advantage of the incompetency, a timely objection should have been interposed. The headnote in that case is as follows: "The testimony of an incompetent witness, if it is material, when received without objection, is of probative value, and will be considered and given such weight as the jury deems it entitled to, in view of his interest and other circumstances." To the same effect, see Brittain Brothers Co. v. Davis, 174 Ga. 1 (5) ( 161 S.E. 841); Lefkoff v. Sicro, 189 Ga. 554, 572 ( 6 S.E.2d 687).
But the question here presented is not one relating to mere privilege, but involves an absolute disqualification. The act of 1866, supra (Code, § 38-1606), plainly provides that nothing contained therein shall apply "to any action, suit, or proceeding in any court, instituted in consequence of adultery." The legislature enacted that, in changing the rule at common law so to permit a party to testify in a suit brought by himself, the common-law bar to his being a witness in "any action, suit, or proceeding in any court, instituted in consequence of adultery" is expressly retained. To permit such incompetency to be waived by the opposite party would not merely affect his rights but would defeat the clear intent of the legislature. This can not be done. In Bishop v. Bishop, supra, where a husband brought suit for divorce based on the alleged adultery of his wife, the husband, in answer to a question from her counsel as to why he left her, answered, "Because I caught her in bed with another man." On the question of the admissibility of this testimony under the circumstances, this court said: "Public policy forbids that a husband should be permitted to thus testify, although there may be no objection, or even if there should be an agreement for him to do so. If adultery was not involved in this issue, the evidence would have been wholly immaterial. But it is evident that it was directly relied on to prevent a judgment for alimony in favor of the wife." This court there treated the incompetency of the husband as an absolute disqualification or bar to his testifying to the adultery of the wife, and the husband's answer was held inadmissible, not merely because counsel for the wife, after asking a question which elicited the unfavorable answer, sought to have it eliminated, but because the husband was, without reference to such effort of counsel, barred from testifying in any manner to the adultery of the wife. The pronouncement of this court in that case correctly reflects, we think, the legislative intent, and will be applied to the facts of the present case. Accordingly, we hold that the husband's testimony here, which tended to show adultery of the wife, was wholly inadmissible, even though no objection was interposed.
The testimony of the mother of the petitioner that he was not in Augusta in May, 1942, because he did not come to see her, is a mere conclusion based on a fact which did not warrant it. While it might be a very unfilial act, it was entirely possible for the son to have visited Augusta at that time, as testified by the defendant's brother, and yet for reasons satisfactory to himself to have failed to call upon his mother. Cold logic and reason, detached from sentiment, require us to hold that the testimony of the mother was without probative value. No evidence showed adultery, and the verdict for the petitioner was unauthorized.
The second and third special grounds of the motion for new trial are controlled by what is said above; and inasmuch as the case is being reversed, no ruling is deemed necessary on the question whether or not a continuance should have been granted to the defendant.
Judgment reversed. All the Justices concur.