Sikes v. Tippins

85 Ga. 231 | Ga. | 1890

Blandford, Justice.

This was an action brought by Tippins against Sikes for criminal conversation with his wife. Under the charge of the court, the jury found a verdict for the plaintiff. The defendant moved for a new trial, which was refused, and this he alleges as error.

1. The defendant contended that Tippins condoned the adultery of his wife by living with her after he had found out the same. The court below held that such condonation did not bar the plaintiff of his right to recover ; and in this we think the court was right. The court further held that it was a matter to be taken into consideration by the jury in mitigation of damages; and we think this holding was fully as favorable to the defendant as he had any right to expect.

In the case of Verholf v. Van Houwenlengen, 21 Iowa, 431, the Supreme Court of Iowa held that condo-nation of the wife’s offence of adultery, or forgiveness by the husband of the wife, did not bar the plaintiff’s right to recover as against the adulterer. The husband may forgive the wife, and yet he may not forgive the author of her defilement and of his loss, wrong and injury. The defendant can no more defeat the action-upon the ground of condonation than he could upon a plea of recrimination, or the ground that his accuser had been guilty of the same offence. See Bromley v. Wallace, 4 Esp. 287; 2 Greenl. Ev. §56. See also the case of Sandborn v. Neilson, 4 N. H. 501, in which case it was said: “As to the circumstance that the plaintiff lived with his wife after his knowledge of her want of fidelity to his bed, this may be evidence that he had forgiven her offence, but it is no evidence that he had forgiven the offence of the defendant. This circumstance could be no answer to the action.” See also 2 Hilliard Torts, 515, and Smith v. Milburn, 17 Iowa, 30. While con-donation would defeat the plaintiff in an action for divorce against his wife, it is no bar to an action against her seducer. See also the case of Stumm v. Hummel, 39 Iowa, 483. The court in that case said that if the plaintiff, after a full knowledge of his wife’s infidelity, continued to live with her upon the same terms as before her crime, this would be no evidence to show that the plaintiff'connived at her infidelity; and the plaintiff’s forgiveness of his wife and continuance of the marital relation did not necessarily have the effect to establish connivance or assent. “The law will not hold a party remediless for an injury of this kind because, through the exercise of Christian virtue, the influence of family interest, or even in the want of what may be regarded as true manly spirit, he forgives an erring wife and trusts in her reformation and promise of future good conduct and virtue.” In Michael v. Dunkle, 84 Ind. 544, it was held that a husband may maintain an action of criminal conversation, although the intercourse took place after his final separation from his wife, and although a divorce had been granted to the wife for the cruelty of the husband. We think these cases fully establish the proposition that the husband’s ■living with the wife after knowledge of her criminal conversation, does not bar the husband’s right to recover against her seducer; and therefore there was no error in the charge of the court below on this subject.

■ 2. We think the verdict of the jury is amply sustained by the evidence, and that the amount thereof ($1,400) was not excessive. Judgment affirmed.