30 S.E.2d 640 | Ga. | 1944
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 *749 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.
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;" *750 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 *751
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,
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. *752
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,
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,
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 *754 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.