Brinson v. Brinson , 201 Ga. 540 ( 1946 )

1. Cruel treatment as a ground for divorce is the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health.

2. Condonation is the forgiveness, either express or implied, by one spouse of the other, for a breach of marital duty, with an implied condition that the conduct will not be repeated.

(a) In order to bar an action by a wife, knowledge of the guilt of the husband, and her forgiveness, must be clearly and distinctly proved.

3. The evidence in the instant case was amply sufficient to support the verdict in favor of the wife on both counts.

No. 15622. NOVEMBER 14, 1946. Mrs. Brinson brought an action for divorce against her husband on the ground of cruel treatment. The petition was in two counts. In count one, she prayed for a total divorce, custody of a minor child, temporary and permanent alimony. In count two, she prayed for a judgment against her husband for money alleged to have been deposited with him upon the agreement that it would be returned on demand. Without challenging by demurrer, the sufficiency of the petition, the husband filed an answer denying any acts of cruel treatment, or that he was holding any money in trust for her. By amendment, he contended that there had been a complete condonation of all acts complained of in the petition, by their living together as husband and wife since the happening of the alleged acts of cruelty.

The substance of the wife's testimony was: They were married in 1925 and separated in 1944. At the time of marriage she was 24 and her husband was about 45 years of age. He had three children by a previous marriage. They had one daughter, 17 years of age. Her husband was worth over $100,000 in real estate and other securities, but had refused to provide her and their minor daughter with many of the ordinary necessities of life, and had forced them to live under extremely crude and embarrassing conditions. For a long time and until the date of separation, her husband had been guilty of repeated practices of highly repulsive and indecent conduct in the presence of herself, their maturing daughter, neighbors, and other persons, all of which had caused her great humiliation. For a period of two years prior to the separation, her husband openly maintained a highly unconventional association with a named young woman of disreputable character, and when the wife protested, he told her that she could leave if she didn't like what he was doing. Her husband told her she was unwanted and undesirable. After this, and as soon as she could find another place to live, she moved, and since had lived separate and apart from him. He addressed some mail to her later, using her maiden name. The effect of such conduct had caused her to be very nervous and unhappy. In 1927 and 1928 she deposited a total of $2721.47 with her husband, upon the agreement that it would be repaid on demand. Upon the separation, she demanded a return of the money, but he refused and failed to repay it. At her husband's request she also paid a note of $3500, which he owed to a bank, but this was in addition to, and no part of the $2721.47 deposited with him. Her husband adjusted the $3500 which she paid the bank by conveying title to the property, which secured the debt to her.

The husband by his testimony denied that he had been guilty of cruel treatment toward his wife, and denied that his association with the woman named had been in any respect improper or such as should have been objectionable to her. He further testified that the $2721.47 deposited with him by his wife was used to pay a note owed to a bank, upon the agreement with his wife that he would either refund the money or convey title to the property which secured the note, and that she elected to take the property, and he thereafter conveyed it to her.

The jury returned a verdict in favor of the wife, on both counts, for all the relief prayed, and the court thereupon entered judgment. The husband made a motion for new trial based on the usual general grounds only, which motion was overruled, and he excepts. 1. Cruel treatment as a ground for divorce is the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies an apprehension of danger to life, limb, or health. Ring v. Ring, 118 Ga. 183 (44 S.E. 861, 62 L.R.A. 878); Wood v. Wood, 179 Ga. 635 (176 S.E. 483);Holcombe v. Holcombe, 197 Ga. 105 (27 S.E.2d 687). "Mental anguish, wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises of the person; and that which produces the one is not more cruel than that which causes the other." Glass v.Wynn, 76 Ga. 319 (3) 322; Twilley v. Twilley, 195 Ga. 291 (24 S.E.2d 41). Here, the evidence introduced by the wife, showing the unconventional association of her husband with a named woman of questionable character, his refusal to furnish his family with the ordinary necessities of life, and his personal misconduct in and around their home, was amply sufficient to authorize the jury to find that the husband had been guilty of such cruel treatment as would entitle the wife to a total divorce.

2. "Condonation has been defined to be the forgiveness, either express or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated." Davis v. Davis,134 Ga. 804 (68 S.E. 594, 30 L.R.A. (N.S.), 73, 20 Ann. Cas. 20). "Condonation is not so readily presumed against the wife, as the husband. Knowledge of the guilt of the husband, and forgiveness by the wife, are not legally to be presumed, but must be clearly and distinctly proved, in order to bar her action."Odom v. Odom, 36 Ga. 286 (5), 318; Lowry v. Lowry,170 Ga. 349 (8, a) (153 S.E. 11, 70 A.L.R. 488); Duncan v.Duncan, 184 Ga. 602 (192 S.E. 215). Under the foregoing principles, the evidence authorized a verdict for the wife on the issue of condonation.

3. The evidence being sufficient to support the verdict in favor of the wife on both counts, and having the approval of the trial judge, the judgment overruling the motion for new trial, which was based solely on the usual general grounds, will not be disturbed.

Judgment affirmed. All the Justices concur.