Opinion
21489.
ARGUED JANUARY 8, 1962.
DECIDED FEBRUARY 13, 1962.
Alimony. Clayton Superior Court. Before Judge Reynolds.
John L. Watson, Kemp Watson, for plaintiff in error.
Albert Wallace, contra.
It was error to overrule the general grounds of the motion for a new trial.
ARGUED JANUARY 8, 1962 — DECIDED FEBRUARY 13, 1962.
Mrs. Winnie Brown filed a petition for alimony against her husband, F. C. Brown, Sr. On the trial of the cause, pertaining to permanent alimony, Mrs. Brown testified on direct examination in part as follows: "Q. Mrs. Brown, will you briefly describe to the jury here the reasons why you had to separate yourself from Mr. Brown? A. Well, for the past three to four years, Mr. Brown has neglected the home, the children and I. And about three days prior to the time that I left Mr. Brown, we had very, very little food in the house. The morning that I left, I asked Mr. Brown for some money to buy some groceries because there wasn't anything and he would not give me any money and I felt that I had to make some move. Q. So you say there were no provisions made for any food; were there any provisions made for any clothing that may have been needed in the house? A. No, sir. Q. Did you have any money? A. I had absolutely no money. Q. Did you have any charge accounts or any credit arrangements whereby you could get food provided for? A. I have never had a charge account anywhere."
On cross-examination, the plaintiff testified as follows: "Q. Now, Mrs. Brown, you say that at the time you left him — actually moved out, there was no food in the house? A. At that time there was a little piece of boiling meat and just one or two small items in the refrigerator and I opened the door that morning to show him what was in the refrigerator. Q. How long had that condition existed? Was that just that day or had that been a week? A. We had had meals up until that morning. Q. Up until that morning. A. I asked him that morning for some money — Q. In other words, the day before, you had breakfast, dinner and supper? A. That is right. Q. And then you got up that morning and there wasn't any food for breakfast that morning — A. Yes, sir; we ate the eggs that we had, that morning; yes, sir. Q. So that morning you picked up and left him. Is that when you left that morning? A. That day. During the day. I left. I did try to make provisions for me to leave — something to live on or leave with. Q. So you don't know whether he went later on that day and bought food or not; do you? A. Well, yes; because I was back over to the house to start packing some of my things and there had been no food brought in at that time. The time that I was in the house. Q. Did you tell him that you were leaving at that time? A. No, sir, I did not."
Under the testimony of the defendant, he gave the plaintiff $100 per month to buy food, and his testimony, if believed, would have required a finding that, at the time of the occurrence testified to by the plaintiff, she had available funds to purchase any food needed.
The jury returned a verdict for the plaintiff, awarding her alimony in a stated sum monthly. The jury also awarded the home to the plaintiff and an interest in other described property. The defendant's motion for a new trial as amended was denied and the exception is to this judgment.
The only fact relied upon by the plaintiff to justify abandonment of her husband is that, on the particular occasion testified to by her, he left their home after she had called to his attention that there was very little food in the house, and did not give her any money to purchase food or tell her that he would purchase it. The question is, whether or not the husband's conduct amounted to cruel treatment under our law so as to justify the wife in abandoning him.
Cruel treatment such as would justify a wife in leaving her husband and living in a state of separation from him should be the same kind of cruel treatment that would constitute grounds for a divorce. Durham v. Durham, 156 Ga. 454 ( 119 S.E. 702). Cruel treatment under our law is defined as "the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health." Code Ann. § 30-102 (10). If the conduct of the defendant in leaving the home without adequate food for the needs of the family could be classified as cruel treatment, it is the only occurrence of the kind testified to by the plaintiff. and it has long been the rule that one act of cruelty, not of a violent or serious character, standing alone, is not a sufficient ground for a divorce. Phinizy v. Phinizy, 154 Ga. 199 (2c) ( 114 S.E. 185).
Where a wife abandons a husband without just cause, she is not entitled to alimony. Fuller v. Fuller, 108 Ga. 256 (4) ( 33 S.E. 865); Davis v. Davis, 145 Ga. 56 ( 88 S.E. 566); Brisendine v. Brisendine, 152 Ga. 745 ( 111 S.E. 22); Pace v. Pace, 154 Ga. 712 ( 115 S.E. 65); Durham v. Durham, 156 Ga. 454, 457, supra; Hunsicker v. Hunsicker, 170 Ga. 294 ( 152 S.E. 581); Fulenwider v. Fulenwider, 188 Ga. 856, 866 ( 5 S.E.2d 20); Hudson v. Hudson, 189 Ga. 410, 413 ( 5 S.E.2d 912); Mullikin v. Mullikin, 200 Ga. 638 (3) ( 38 S.E.2d 281); Acree v. Acree, 201 Ga. 359, 362 ( 40 S.E.2d 54); Crute v. Crute, 208 Ga. 724, 725 ( 69 S.E.2d 255); Livingston v. Livingston, 211 Ga. 420, 424 ( 86 S.E.2d 288); Frankel v. Frankel, 212 Ga. 643 ( 94 S.E.2d 728).
Since there was no testimony from which the jury could have found that the wife was justified in abandoning her husband, the judgment of the trial court denying the motion for new trial on the general grounds is reversed. This makes unnecessary any ruling on the alleged error of the court in the charge to the jury.
Judgment reversed. All the Justices concur.