Opinion
34622.
DECIDED JUNE 10, 1953.
Alienation of affections. Before Judge Hendrix. Fulton Superior Court. March 2, 1953.
Len B. Guillebeau, for plaintiff in error.
W. Geo. Thomas, contra.
A suit for alienation of affection of a spouse, under our law, is an action for the loss of consortium, which includes every conjugal right, such as affection, fellowship, co-operation, and aid.
DECIDED JUNE 10, 1953.
The defendant in error, Mrs. Mary W. Holtzendorf (whom we shall call the plaintiff), brought suit against Irene C. Kidd. plaintiff in error (whom we shall hereafter call the defendant). The petition, omitting the formal parts, alleged:
"1. That the defendant herein is Irene C. Kidd, a resident of said State and county and within the jurisdiction of this court.
"2. Plaintiff shows that the defendant has injured and damaged her in the amount of $150,000 on account of the facts that will hereinafter more fully appear.
"3. Plaintiff shows that she has been happily married to her husband, Harold L. Holtzendorf, for a period of twenty-eight years, and that they are now living in a bona fide state of separation brought about by the conduct of the defendant, and that as a result of said marriage with Harold L. Holtzendorf four children were born, the eldest of whom is married, the following two being girls of the age of sixteen and eleven years respectively, and the youngest child being a boy of the age of four months.
"4. Plaintiff shows that for the past year the defendant has been meeting plaintiff's husband surreptitiously, said defendant knowing that plaintiff's husband was a married man.
"5. Plaintiff shows that the defendant was also married to Landa J. Kidd, who died September 19, 1951.
"6. Plaintiff shows that thereafter her husband, Dr. Harold L. Holtzendorf, in company with the defendant, left the City of Atlanta en route to Reno, Nevada, for the purpose of obtain- a divorce for the plaintiff's husband against her.
"7. Plaintiff shows that her husband and the defendant left the City of Atlanta October 6, 1951, en route to Reno, Nevada, and spent the first night in a motor court at Huntsville, Alabama, the defendant herein checking in said motor court under the name of Betty Seamans. Plaintiff shows that on October 7, 1951, her husband and the defendant stayed at a motor court in Oklahoma City, the defendant using the name of Betty Seamans; on October 8, 1951, plaintiff's husband and the defendant stayed at a motor court in Kingman, Arizona; on October 9, 1951, plaintiff's husband and defendant spent the night in a motor court between Las Vegas, Nevada, and Reno, Nevada, the defendant using the name of Betty Seamans.
"8. Plaintiff shows that after her husband and the defendant arrived at Reno, Nevada, they checked into the Moana Auto Apartments on U.S. Route 395 at Reno, Nevada, the defendant herein registering at said apartment motel under the name of Betty Seamans.
"9. Plaintiff shows that although the defendant knew that plaintiff's husband was married and that plaintiff at the time was four months pregnant, despite this knowledge on the part of the defendant, the defendant did entice plaintiff's husband to separate from her and file suit for divorce in Reno, Nevada.
"10. Plaintiff shows that her husband did file suit against her in Reno, Nevada, and that her husband and the defendant remained in Reno, Nevada, until October 15, 1951, when the defendant herein purchased a ticket on the United Airlines for Atlanta, purchasing $25,000 worth of insurance, naming plaintiff's husband as beneficiary.
"11. Plaintiff shows that after she was in receipt of correspondence from an attorney in Reno, Nevada, requesting her to sign a power of attorney and to appear through an attorney in the Nevada courts, that she refused to do so. Whereupon plaintiff's husband left Reno, Nevada, and started back to Atlanta, where, en route the defendant met plaintiff's husband in Memphis, Tenn., again registering under the name of Betty Seamans.
"12. Plaintiff shows that the defendant would annoy and harrass her, asking her to give her husband a divorce so that the defendant might marry him — the defendant even going so far as to offer a mutual acquaintance $300 to get the plaintiff in an intoxicated condition so that she might be caught in a compromising situation, thereby giving plaintiff's husband grounds for divorce.
"13. Plaintiff shows that the conduct of the defendant in associating and enticing her husband and begging him to divorce the plaintiff, promising plaintiff's husband huge sums of money to divorce the plaintiff in order that they might leave the State of Georgia and take up residence elsewhere, such conduct on the part of the defendant causing plaintiff herein to suffer the loss of the conjugal fellowship of her husband. Further, that this conduct on the part of the defendant was done with the intent to produce a wrong to the plaintiff and that the defendant's acts were so inherently wrong and so seductive in their nature, and that the defendant's conduct is the proximate contributing cause of the plaintiff's injury.
"14. Plaintiff further shows that on account of the defendant's conduct she has lost the consorting of her husband and the conjugal fellowship which she had enjoyed with her husband up until the time the defendant enticed and seduced plaintiff's husband to separate from her.
"15. Plaintiff shows that the defendant has written to the plaintiff's husband beseeching him to divorce the plaintiff.
"16. Plaintiff shows that the sole and proximate cause of her injuries was caused by the defendant in enticing and seducing plaintiff's husband with promises of large sums of money and property, provided that he would divorce plaintiff and marry the defendant.
"Wherefore plaintiff prays: (a) That she do have and recover of the defendant the sum of $150,000, and (b) that process issue requiring the defendant to be and appear at the next term of this court in answer to this complaint."
The above petition was filed in the office of the Clerk of the Superior Court of Fulton County on August 11, 1952. The defendant was duly served and on September 10, 1952, the defendant filed her answer, without demurring to the petition either generally or specially.
The defendant admits residence as alleged in paragraph 1 of the petition. Paragraph 2 is denied. Paragraph 3 is denied, except that the defendant denied that the separation of the plaintiff and her husband, if they are living in a state of separation, was in any way brought about by the conduct of the defendant. Paragraph 4 is denied. Paragraph 5 is admitted. Paragraphs 6, 7, 8, and 9 are denied. The defendant denies paragraphs 10 and 11, except that for want of information, the defendant can neither admit nor deny the allegations in those paragraphs that the plaintiff's husband filed a suit for divorce against the plaintiff in Reno, Nevada, and that the attorney mailed certain papers to the plaintiff. The defendant denies the allegations of paragraphs 12, 13, 14, 15, and 16 of the petition.
On January 12, 1953, the defendant filed a motion in the nature of a general demurrer to dismiss the petition on the ground that it did not allege a cause of action. The court overruled this motion, and refused to dismiss the petition. On this judgment the defendant assigns error.
We will not here discuss or go into the question that the motion of the defendant to dismiss the plaintiff's petition was not filed in time. So far as this case is concerned, any discussion of that point is beside the question to be determined here. We have set out the allegations of the petition in full, and have set out the allegations of the answer substantially. The court correctly refused to dismiss the petition of the plaintiff on the motion of the defendant. The defendant cites in support of the motion to dismiss the petition, Martin v. Ball, 30 Ga. App. 729 ( 119 S.E. 222), and Herrington v. Spell, 48 Ga. App. 802 ( 173 S.E. 870). A casual reading of the cases will disclose that neither of them approaches any similarity to the allegations of the petition now before us. We deem it useless to discuss them. The law governing the situation made by the allegations of the instant petition is succinctly set forth in Hosford v. Hosford, 58 Ga. App. 188 ( 198 S.E. 289). In that case the court stated: "The gist of an action for alienation of affections is the loss of consortium, that is, the right of the husband or wife to the conjugal fellowship, company, co-operation and aid of the other in every conjugal way."
Also in Jackson v. Davis, 203 Ga. 39 ( 45 S.E.2d 278), it was held: A motion to dismiss in the nature of a demurrer, "will not be allowed unless every material fact on which the motion is founded is apparent in the declaration." (Italics ours.)
The allegations of the instant petition bring it squarely under the above provisions of law and, if sufficient of such allegations are proven, the plaintiff is entitled to a verdict.
The court did not err in denying the motion of the defendant to dismiss the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.