Opinion
14388.
JANUARY 13, 1943.
Divorce. Before Judge Hendrix. Fulton superior court. September 16, 1942.
H. W. McLarty, for plaintiff. William G. McRae, for defendant.
1. In the instant suit for divorce by a wife, in which the husband filed a cross-action praying for a total divorce in his own behalf, and recovered a verdict accordingly, whether the cross-action should be construed as failing to allege that the complainant therein had resided in this State more than twelve months before it was filed, and whether, if so, it would be defective as an application for divorce, these questions were not raised by the general grounds of the plaintiff's motion for a new trial, so as to require a decision thereon by this court, where the motion was overruled by the trial judge. Kelly v. Strouse, 116 Ga. 872 (6) ( 43 S.E. 280); Henley v. Brockman, 124 Ga. 1059 (2) ( 53 S.E. 672); Davis v. Metropolitan Life Insurance Co., 161 Ga. 568 (4), 573-574 ( 131 S.E. 490); Boswell v. Federal Land Bank of Columbia, 181 Ga. 258 (4) ( 182 S.E. 1).
( a) Whether if a new trial had been granted, and it appeared that the pleadings were not sufficient to support the verdict, this court would affirm the judgment, notwithstanding the question of practice, quaere. Compare Blount v. Metropolitan Life Insurance Co., 192 Ga. 325 ( 15 S.E.2d 413); Coker v. Atlanta, 186 Ga. 473 ( 198 S.E. 74); Richter v. Cann, 191 Ga. 103 ( 11 S.E.2d 774).
( b) On whether an allegation of such residence by the defendant would be essential in a cross-action, see Code, § 30-106; 27 C. J. S. 637, § 73; 17 Am. Jur. 287, § 264; Aucutt v. Aucutt, 122 Tex. 518 ( 62 S.W.2d 77); 89 A.L.R. 1198, 1203, note.
2. While the defendant alleged that the plaintiff had "abandoned" him, this averment referred to the separation which occurred only a few days before the litigation arose; and it is clear from the cross-action as a whole that the defendant sought a divorce on the alleged ground of cruel treatment, and not on desertion as defined in the Code, § 30-102 (7). Accordingly, the judge did not err in failing to instruct the jury on wilful and continued desertion for three years, as ground for a divorce.
3. In an action or cross-action for divorce on the ground of cruelty, unless the evidence was sufficient to show cruelty as alleged, there would be nothing to condone; and therefore the judge's failure in such case to charge on condonation would not be erroneous. Under this ruling and others infra in reference to the evidence, the judge did not err in failing to charge on that subject. See, as to condonation, Code, § 30-109.
4. Cruel treatment 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." Stoner v. Stoner, 134 Ga. 368 ( 67 S.E. 1030); Wood v. Wood, 179 Ga. 635 ( 176 S.E. 483).
5. "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; Cohen v. Cohen, 194 Ga. 573 (4) ( 22 S.E.2d 132); Allen v. Allen, 194 Ga. 591 ( 22 S.E.2d 136).
6. The verdict should be construed in the light of the pleadings, the issues made by the evidence, and the charge of the court. Gray v. Junction City Manufacturing Co., 195 Ga. 33 ( 22 S.E.2d 847); Barbour v. State, 8 Ga. App. 27 ( 68 S.E. 458); McCollum v. Thomason, 32 Ga. App. 160 (2) ( 122 S.E. 800); Swain v. Georgia Power Light Co., 46 Ga. App. 794 ( 169 S.E. 249). Under such construction, and especially in view of the charge as to forms of verdict, the verdict as returned, for a "total divorce between the parties in this case cross-bill of deft.," amounted to denial of a divorce to the wife on her main petition, and grant of a divorce to the husband on his cross-action. See Code, § 30-108.
7. Under the preceding rulings as to what is necessary to constitute cruel treatment as ground for divorce, the evidence did not authorize a verdict for the husband on that ground; but in view of the evidence of the wife as to repeated insults and neglect, and her further testimony to the effect that such treatment by the husband had made her a nervous wreck, a verdict for her on the ground of cruelty would have been authorized, although it was not demanded. It follows that the judgment overruling the wife's motion for a new trial was error as applied to the verdict for the husband on his cross-action; but it was within the judge's discretion either to grant or refuse a new trial as applied to the verdict against the wife on the main petition.
8. Since the evidence would have authorized a divorce in the wife's favor on the main petition, and therefore the judge could in his discretion have either granted or refused a new trial as applied to such main petition, but erred in refusing a new trial as applied to the cross-petition, and since this error may have entered into and affected his discretion in denying the motion as related to the wife's petition for a divorce in her own behalf, it is directed that the judge on further consideration of the motion, after the remittitur is made the judgment of the trial court, and at the time of granting a new trial as applied to the verdict for a divorce in favor of the husband, determine in his discretion whether he will also grant a new trial as applied to the wife's action, or whether he will refuse it, and specify in his order the scope of his adjudication on these questions. See, in this connection, Bourquin v. Bourquin, 110 Ga. 440 (6) ( 35 S.E. 710); Boone v. Boone, 192 Ga. 579 ( 15 S.E.2d 868). As to this phase, the case differs on its facts from Chicago Building Manufacturing Co. v. Butler, 139 Ga. 816 ( 78 S.E. 244), where in a suit on contract against several persons, after verdict for all the defendants, this court reversed the refusal of a new trial as to some of the defendants for whom the verdict was not authorized, but at the same time affirmed it as to others for whom it was supported.
Judgment reversed, with direction. All the Justices concur.
No. 14388. JANUARY 13, 1943.
Mrs. Laverne Twilley filed suit against her husband, J. H. Twilley, praying for a total divorce, permanent and temporary alimony, injunction, and other relief. For the purposes of the present writ of error, the case as made by the petition may be stated only as a suit for divorce, the alleged ground for such relief being cruelty on the part of the defendant.
The defendant filed an answer denying all of the plaintiff's allegations as to cruelty. He also recriminated and prayed for a divorce in his favor. The latter part of his answer was referred to in the charge of the court as a cross-action, and similar reference has been made to it by counsel in this court.
In the petition of the wife it was alleged that she had been a bona fide resident of the State of Georgia for more than twelve months, and that the defendant "is a resident of the above-named State and county" (meaning Fulton County, Georgia). These averments were contained in paragraphs 1 and 2 of the petition, and were admitted as true in the defendant's answer. Except as here indicated, the answer was silent as to residence of the defendant. The petition alleged that the plaintiff and the defendant were married on June 6, 1936, and lived together as husband and wife until on or about February 7, 1942. The defendant admitted that these allegations were true, except that he averred the separation occurred on February 8, 1942. The petition was filed on February 10, 1942. The answer was filed on the following March 2.
As to the circumstances of the separation, the defendant alleged, in part, that "on the 8th day of February, 1942, after 4 o'clock in the morning, petitioner, while the defendant was in bed asleep, abandoned petitioner's home and took his 1941 Hudson automobile and $651 in cash which constituted a part of the receipts of defendant's business for the preceding week, without any cause." The other allegations in the answer as related to divorce consisted of denials and explanations of the plaintiff's allegations in reference to cruelty on the part of the husband, and affirmative charges for the purpose of showing cruelty on the part of the wife. There was no reference to desertion, wilful or otherwise, as ground for divorce, unless the above-quoted allegation containing the word "abandoned," or the defendant's testimony referring to his wife as having "deserted" him, amounted to such.
On the first trial, in which each of the parties sought a "first verdict," the jury returned a verdict finding a total divorce "between the parties in this case cross-bill of deft." The plaintiff moved for a new trial on the general grounds, and two special grounds were added by amendment. In ground 4 it was contended that the court erred in failing to charge the jury that before the defendant would be entitled to a divorce from the plaintiff on the ground of desertion, it should be made to appear that such desertion "had been continuous for more than three years before the filing of the defendant's cross-bill, and uncondoned." In ground 5 it was contended that the court erred in failing to charge the jury to the effect that the defendant could not prevail on the ground of cruel treatment, for the reason that his testimony showed that so far as he was concerned his complaint was based on desertion, and that this had been condoned by him. It was contended further that the court erred in failing to instruct the jury as to what would constitute condonation, conditional and unconditional, the instruction which it is claimed the court should have given being set forth. The court overruled the motion for a new trial, and the plaintiff excepted.
The plaintiff testified as follows: "I am Mrs. Laverne Twilley. I have lived in the State of Georgia for more than one year before filing this suit.
"I was married to J. H. Twilley on or about June 6, 1936, and I separated from him about February 7, 1942, and have lived apart from him at all times since that date.
"We have no children the issue of our marriage.
"My husband, J. H. Twilley, was cruel to me, in that he cursed me on many occasions, used vile and profane names to me, and at other times he would be in a sulky and stubborn mood, and sometimes this mood would last from three days to two weeks, during which time he would refuse to even speak to me. During these sulky and stubborn moods my husband would come home at night, pat the dog on the head and talk to it, showing his affection for the dog, but would not so much as speak to me. My husband never accused me of running around with other men, and I never heard of it until he set it up in his cross-bill.
"One night my husband bawled me out when I came home from going skating, which I enjoyed doing. I invited him to go with me, and he said he had worked too hard all day and was tired.
"My husband was so mean to my friends and discourteous to them that they stopped coming to our home when he was there, for the reason that sometimes he would speak and at other times he passed through the room and would not even speak.
"It was for two weeks immediately preceding the separation that my husband did not speak to me and treated me as if I did not exist.
"My husband was not on speaking terms with Mrs. Frances Harbin, who had been visiting in the home for a week at the time of our separation. . . At the time we separated my husband and I had not had marital relations since June, 1940, which was approximately twenty months; and prior to June, 1940, his relations with me were about every six months. My husband cast me off as his wife, and treated me as a servant in the home, for which I received no pay. I was a good wife to him, and never refused him his conjugal rights.
"This treatment by my husband caused me a lot of worry, because I had no approach to him, and his conduct made a nervous wreck of me."
The defendant testified: "My name is J. H. Twilley, and I am the defendant in this case. I bawled out my wife on one occasion when she came home after she was supposed to have gone to the skating-rink. I went to the skating-rink and did not see her, and she came home two hours later. I told her that I did not think a skating-rink was a proper place for a married woman to go alone. About a week before my wife left me, her brother's wife, Mrs. Frances Harbin, came to our home. I went with my wife to the train to meet her. It was my intention to let her stay at our house until a reconciliation could be effected with her husband. I learned that Mrs. Harbin had gotten a job in Atlanta and did not intend to return to her husband. I told Mrs. Twilley that under those conditions Mrs. Harbin could not stay at my house longer. Mrs. Twilley said: `If Mrs. Harbin leaves, I will go too.' I told her she could do as she pleased. On Saturday night before Mrs. Twilley deserted me at about four o'clock on Sunday morning, we entertained a group of friends in our home. Everything was pleasant, and no indication was given by Mrs. Twilley that she intended to leave me. The friends left about one o'clock, and I went to bed, leaving my wife and Mrs. Harbin in the living room. About three o'clock, I asked my wife to put a mustard plaster on me, as I was developing a cold. She put the mustard plaster on me, and I went to sleep. When I woke up that morning my wife was gone, Mrs. Harbin was gone, and $651 of my receipts from the week's business and my 1941 Hudson automobile were gone. There was no cause for my wife to leave me. I had always been good to her; bought, her a fur coat, clothes; gave her all the spending-money she desired, and provided her with a beautiful home. I have been to her and begged her to go back to me on many occasions since the separation; and last Sunday morning I had breakfast with my wife, and at that time I begged her to come back to me, but she refused to come back. It is true that my wife and I did not have conjugal relations with each other for some time before she left me, but that was because of her desire and not mine. She was always running around somewhere."
No other evidence was introduced.
The court charged the jury as follows, in reference to forms of verdict: "Now, gentlemen, in considering this case, you should determine whether a divorce should be granted to the petitioner under the rules that I have given you and the evidence as you find it to be; and if you should determine that no divorce is to be granted to the plaintiff under the rules and the evidence as you find it to be, the form of your verdict would be, `We, the jury, find for the defendant,' and that would be an end of your deliberations as far as this particular divorce suit is concerned.
"Gentlemen, the verdict as prepared for your consideration only, in the form in which it is prepared, grants a total divorce on the original petition and on the cross-bill. If you have any difficulty about determining how your verdict should be legally phrased after you have made your verdict, you can file back into the courtroom, and the court will superintend or supervise the preparation of it in accordance with your findings. In the event you should determine that a divorce is to be granted to the plaintiff under the rules that I have given you and the evidence as you find it to be, the form of your verdict would be, `We, the jury, find for the plaintiff on the original petition.' In the event you should determine that no divorce is to be granted to the plaintiff under the rules that I have given you and the evidence as you find it to be, but that a divorce is to be granted to the defendant on his cross-petition, the form of your verdict would be `We, the jury, find for the defendant on his cross-petition.' In the event you should determine that a divorce is to be granted to both the plaintiff and the defendant under the rules that I have given you and the evidence as you find it to be, the form of your verdict would be `We, the jury, find for the plaintiff on her petition and for the defendant on his cross-bill.'"
Counsel for Mrs. Twilley argued the following four contentions under the general grounds of the motion for a new trial: (1) The failure of the defendant to allege residence of one year and to prove it on the trial. (2) The evidence of the defendant failed to prove cruel treatment, or that the same was wilfully inflicted. (3) The defendant failed to prove that said alleged cruelty in any manner affected his health, life or limbs, or raised a reasonable apprehension of danger. (4) The defendant failed to prove that said alleged cruelty had not been condoned. The two special grounds were also insisted upon.
Counsel for the defendant in error insisted that the verdict in favor of the defendant on his "cross-bill" was supported by sufficient pleadings and evidence, and that no error requiring a new trial was committed; also that the verdict should be construed as granting a divorce to the husband on his cross-action, and denying a divorce to the wife on her petition; and that even if the judgment should be reversed on the ground that the verdict for the husband was not supported by the evidence, the judgment should still be affirmed as applied to the main petition. Counsel for the plaintiff in error replied that only one verdict was rendered; and that if the refusal of a new trial be reversed, the entire case should be thereby reopened.