Durham v. Durham , 156 Ga. 454 ( 1923 )

Atkinson, J.

Mrs. Nodie Durham brought a suit for permanent alimony and attorney’s fees, alleging that she and W. K. Durham, her husband, were living .in a bona fide state ol: separation; that she had been forced to separate herself from the defendant, and declined to live with him as his wife, because of certain alleged acts of cruel treatment and habitual drunkenness upon the part of her husband. The defendant denied all the allegations as to cruel treatment and habitual drunkenness on his part; and further answered that he would be glad for his wife to return to his home and live with him. Upon the trial of the case evidence was submitted by both parties; and the jury, after the case was submitted under the charge of the court, returned a verdict for the petitioner, awarding her the sum of $900 as permanent alimony. The court thereupon entered a decree adjudging that the petitioner have and recover of the defendant the sum of $900 principal, and interest from a stated date; and in the decree it was adjudged that the petitioner recover of the defendant $300 for attorney’s fees. The defendant made a motion for a new trial, which was overruled, and he excepted.

1-6. The rulings made in headnotes 1 to 6 require no elaboration.

7. Another ground of the motion for new trial assigns error upon the failure of the court to give to the jury “ any legal definition of cruelty, by which they might judge the legal standard set up by the court, and left them purely to be governed by their own imaginations of what cruelty the law would consider sufficient to drive a wife from her husband’s home.” We are of the opinion that the court erred in failing to give instructions to the jury as to what would constitute such cruelty or cruel treatment as would justify the wife in leaving her husband’s home and thereby bring about a state of separation so as to entitle her to permanent alimony; Instructions upon this subject are of prime importance in a case of this character. Where a suit is brought for divorce upon the ground of cruel treatment, or where suit is brought for permanent alimony, in case the husband and wife are living in a bona fide state of separation, and she complains that she was compelled to leave her husband’s home on account of cruel treatment, the most important part of the court’s instructions must necessarily relate to the character of the acts and the conduct on the part of the husband which the jury would be authorized to find amounted to cruel treatment as defined by the law upon that subject; and we do not find a single word in the charge which laid down for the jury a standard by which they should be guided in their effort to determine whether the acts upon the part of the husband amounted to cruel treatment, as that expression is to be understood by the jury in their investigation of charges like those made in the complainant’s suit. Certain of the witnesses testified to acts on the husband’s part which might be regarded as cruelty or cruel treatment under the general definition of that term, as given' by lexicographers, but which would not amount to cruel treatment under the definition to be found in the law. Whether there were acts of cruel treatment upon the part of the husband that caused the separation of husband and wife was a controlling issue in this case; it was one as to which instructions were required. Many acts upon the part of a husband in the presence of his wife, or towards her, might, under the general definition of cruelty as found in the dictionaries, be regarded as cruel treatment, while those acts could not be considered as grounds for divorce or as grounds upon which the wife would be justified in leaving her husband. Cruel treatment which would justify a wife in leaving her husband- and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for divorce. TJnless we adopt that definition, we know of no other that could be applied in a case of this kind. ’ In the case of Davis v. Davis, 145 Ga. 56 (88 S. E. 566), it was said: “ Where no divorce suit is pending, and alimony is applied for because the husband and wife are living in a bona fide state of separation, on a hearing for temporary alimony it is an abuse of discretion to allow alimony to the wife, where it is admitted that the husband provided everything he could for his wife, and a fair analysis of the evidence discloses no cruel treatment of the wife by the husband, and shows that the wife refused to live with the husband because of mutual antipathy between him and the wife’s mother, and that the husband had prepared a furnished home and asked the wife to come to it, who refused to do so, assigning as her reason that she no longer loved him and did not wish to go with him.” And in the case of Fuller v. Fuller 108 Ga. 256 (33 S. E. 865), it was held that. “ A husband is not bound to support his wife if she abandons him without just cause.” The term “ cruel treatment ” is used in the Davis case, supra, without definition. It seems to be assumed that the term is well under - ■ stood as used in the law-; and there is no suggestion that where the petition is one for alimony and not for divorce, and cruel treatment is relied upon as justifying the wife in separating from her husband, it has any other definition than that given in divorce cases. There are several cases in which cruel treatment is defined. In the case of Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878), it was said: “ ‘ Cruel treatment/ within the meaning,” of the Civil Code, § 2427, which provides that such treatment shall be 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. Odom v. Odom, 36 Ga. 286, approved and followed. Gholston v. Gholston, 31 Ga. 625, and Myrick v. Myrick, 67 Ga. 771, doubted, criticised, and distinguished.” And in the course of the opinion the following excerpt from the case of Evans v. Evans, 4 Eng. Ecc. Rep. 310, was quoted approvingly: “The causes must be grave and weighty, and such as show an absolute impossibility that the duties of the married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted. . . What merely wounds the mental feelings is in few cases to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil' attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offenses in the moral state undoubtedly, not innocent surely in any state of life, but still they are not that cruehy against which the law can relieve.” See also Dougherty v. Dougherty, 153 Ga. 487 (112 S. E. 454), Brown v. Brown, 129 Ga. 246 (58 S. E. 825), and other cases not here specifically referred to, but cited in these cases. A reading of these cases will make it plain that where permanent alimony is sought, as in this case, or in a suit for divorce, instructions upon the subject of -cruel treatment are required.

8. ' No argument nor citation of authorities is necessary to support the ruling made in the eighth headnote.

9. In the bill of exceptions in the se'cond case (No. 3534), error is assigned upon the ruling of the court sustaining the demurrer to the petition of the defendant in the first case to set aside the judgment in so far as it awards the sum of $300 as attorney’s fees in favor of the plaintiff in the first case. But it is unnecessary to pass upon the merits of the motion or the assignment of error on the ruling just stated, because, having reversed the judgment of the court below on the ground that it erred in refusing a new trial, the verdict of the jury in the first case is set aside, and this carries with it the entire decree, which included the judgment for attorney’s fees. The bill of exceptions, therefore, is dismissed in the second ease.

Judgment reversed in No. 3533. Writ of error dismissed in No. 3534.

All the Justices concur.