Ross v. Ross , 169 Ga. 524 ( 1929 )

Atkinson and Gilbert, JJ.,

dissenting. After considering it, in view of the decision in Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878), and the cases that follow it, we do not think that there is any evidence of cruel treatment in the sense in which those words were used in the statute. In Black v. Black, 149 Ga. 506 (101 S. E. 182), the wife filed her petition for divorce and alimony, and sought divorce on the ground of cruel treatment. The acts of cruelty charged, as appeared from the plaintiff’s own language, were: “The second morning after we were married I tied his tie for him, and when he came back to the house it was tied in a different way, and he said that Mrs.--tied it for him, and that after she tied his tie over she .threw her arms around him and kissed him. . . This had a considerable effect on my mind and feeling, made me feel very badly. . . The third night after we were married he wanted to retire between six and seven o’clock, and I said I wasn’t ready to go to bed, and he says, ‘You little blame fool, what you think I married you for?’' He says, ‘You do what I say do.’ On that night he got up about eleven o’clock and reared around, cursed me, and abused me. . . He called me a blame fool, a little devil, and a damn fool. . . He said that his children were very much dissatisfied about our marriage, and he was the same way. . . On the second Sunday he asked me if I didn’t want to go down to my home. . . He went to ride with Mrs.---[a daughter of the defendant and a lady friend], and rode until after night.” The plaintiff was made to feel unwelcome in the home. Defendant’s children would have nothing to do with her. The plaintiff suffered a great deal mentally, and cried a great deal. The defendant abused her because she had sent a boy to him to collect an account from him. He repeatedly expressed the wish that she would return to her home; and finally, about five weeks after the marriage, “he told me to get my hat and leave; . . he says, ‘I want you to leave on account of my children being dissatisfied.’ He told me that he wanted me to take my hat and leave; the last time he told me this I took my hat and left. I did not give him any cause to treat me this way. . . I separated from Mr. Black on the 24th of March, and the baby was born on the 20th of December, 1917. . . Mr. Black has never done anything for me in any way, for me or the baby either, during the time I was confined.” And in ruling upon the question of the sufficiency of the evidence in that case to authorize a divorce, this court said: “Under the ruling in Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878), Brown v. Brown, 129 Ga. 247 (58 S. E. 825), and Stoner v. Stoner, 134 Ga. 368 (67 S. E. 1030), the evidence failed to show a case of cruel treatment which authorized the grant of a divorce on that ground. The court therefore erred in overruling the defendant’s motion for new trial.” In the case of Ring v. Ring, supra, there is a clear statement as to the character of the evidence and degree required to establish the allegation oE cruel treatment, and the acts of cruel treatment proved in the present case fail entirely to come up to those rules.

It is true that the defendant testified that the wife “threatened to kill him;” but any one reading this record will readily understand that this was an idle threat; all sound and fury, signifying nothing. The husband himself, who testified at great length, did not pretend in any part of his testimony that he had any apprehension that she would carry this threat into execution. In character it is very much like the threat of an angry mother who gives free course to her tongue and threatens hex child with dire punishment and to “half kill him” if he does or does not do such or such a thing. There is not the slightest evidence to show that Mrs. Eoss was ever guilty of any conduct that indicated that she would kill or “half kill” her husband, or inflict upon him any bodily hurt. In fact the husband does not charge in his petition that he was ever under apprehension of bodily hurt at the hands of his wife.

But there are portions of the testimony of the husband which we have pxxrposely refrained from discussing up to this point, to which we must now advert. It is charged in the petition that the defendant voluntarily and without cause or reason “separated herself from the plaintiff during the latter portion of 1925; that she refused, for reasons unknown to plaintiff, to occupy the same sleeping quarters and to cohabit with plaintiff as husband and wife; . . that immediately thereafter she began to nag and abuse plaintiff by telling him that she did not love him, xvished that he woxxld get out, and that she would not live with him; . . that petitioner had never given defendant any cause or reason for her actions towards him; that her separation from him was voluntary, and defendant’s interest in petitioner was only a monetary one.” In portions of his testimony plaintiff in substance charges that the wife, thoxxgh she continued to reside in the matrimonial domicile, wilfully, persistently, and without justification denied him all his conjugal rights, showing an intent to cast him off as her husband, and that from 1925 she had continued to deny him his conjugal rights, and that he and slio had not cohabited as husband and wife since 1925. Now, a denial by-a wife of the conjugal rights of the husband with intent to cast him off as her husband amounts to desertion, where such conduct is continued for the statutory period of three .years. Code, § 2945 (7); Whitfield v. Whitfield, 89 Ga. 471 (15 S. E. 543). But in this case there is nothing to show that the refusal of conjugal rights had continued for the period of three years prior to the bringing of a suit for divorce, and the proof that the wife declined to cohabit with her husband will not authorize the grant of a divorce to him on the ground of cruel treatment. Pinnebad v. Pinnebad, 134 Ga. 496 (68 S. E. 73). Upon a review of the entire evidence in the case and the law relating to the questions presented, we reach the conclusion that the evidence did not authorize the second verdict rendered in this case.