42 Ga. App. 215 | Ga. Ct. App. | 1930
Tom Cochran sued E. O. Davis for criminal conversation, and in his petition alleged in part that by persua
The motion for a new trial contains several special grounds, each of which alleges that the court erred in the charge to the jury. When these alleged errors are read in connection with the principles of law which are hereinafter set out immediately following each alleged error, it will be seen that there is no merit in any of the grounds of the motion.
1. The 4th special ground of the motion alleges that the court erred in the following charge: “Under the facts of this case, it is the duty of the jury to render a verdict for some amount; as to what amount shall be a question for this jury to determine, and is not a question for determination of the court, or for any intimation on the part of the court as to what that amount should be.” In 30 Corpus Juris, 1159, § 1056, the following principle is announced: “Under a general denial defendant can prove in bar only that he did not debauch the woman alleged to be the plaintiff’s wife.” And the undisputed evidence in this case demanded a verdict for some amount in favor of the plaintiff.
3. In the 5th special ground of the motion the following charge is alleged to be erroneous: “The husband may recover for the loss of the wife’s affection and services, and for the mental anguish and disgrace he has sustained.” This is sound law and is applicable to the facts of this case. In 31 Cyc. 1638 (8-1), it is stated that “the husband may recover for the loss of the wife’s affections,' society, and services.” ■ In Vol. 30 of Corpus Juris, § 1163, citing a number of cases to support the statement, it is said that
3. In the 6th special ground of the motion the court is alleged to have erred in charging as follows: “ Owing to the very nature of the offense, punitive or exemplary damages are recoverable.” The court did not err in so instructing the jury. See 30 Corpus Juris, § 1166, where it is said: “In jurisdictions where exemplary damages may be recovered in court actions, owing to the very nature of the offense punitive or exemplary damages are recoverable, malice being presumed.” See also Joseph v. Naylor, 257 Penn. 561 (2) (101 Atl. 846).
4. Plaintiff in error alleges that the court erred in charging the jury as follows: “The fact that the wife consents to the act does not defeat the husband’s right of action.” There is no error in this charge. See 21 Cyc. 1628 (4).
5. In the 8th special ground of the motion complaint is made that the court charged the jury as follows: “The form of your verdict will be, as you find the facts, ‘We, the jury, find for the plaintiff’ so many dollars, or so much.” Under the pleadings and evidence the jury could not have found in favor of the defendant. He filed a plea of general issue only, and on the trial he admitted his guilt. See, in this connection, Sikes v. Tippins, 85 Ga. 231, 235 (11 S. E. 662).
6. The evidence supports the verdict.
Judgment affirmed.