Brown v. Brown

58 S.E. 825, 129 Ga. 246, 1907 Ga. LEXIS 344

• Court: Supreme Court of Georgia
• Decided: August 12, 1907
• Status: Published

Opinion

Evans, J.

(After stating the facts.) In the case of Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878), Candler, J., after a very lucid discussion and analysis of the prior adjudications of this court, defined cruel treatment within the meaning of the Civil Code, §2427, which provides, that such treatment shall be a ground for divorce, to be “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. .. . The intention to wound is a necessary element of the cruel treatment for which a divorce is allowed:” The majority of th& court concurred in this exposition of the meaning of the term, “cruel treatment,” as used in our divorce statute. While the writer was upon the superior-court bench, he observed a tendency to extend and apply this ground for divorce to many trivial circumstances happening in the domestic relation as sufficient to-dissolve the marital tie. Slight disagreements, and words inspired by transitory temper, were never intended by the statute as cause for setting aside a marriage contract. The testimony of •the plaintiff shows her husband was not a very industrious man, and he may not have provided her with what she considered a reasonable support. About a year before the separation he cursed libellant, and threatened to whip her. That she considered this. threat to be a mere exhibition of temper; and that no bodily harm. was apprehended, is shown by her remaining with him for a year thereafter. No immediate provocation was given for the separation; and when the libellant formulated her grounds for divorce she seized upon a • sally of temper, which had been condoned by a year’s cohabitation. Condonation is a conditional forgiveness of all antecedent acts of cruelty, and such acts as may have been condoned will not be revived except by fresh acts of cruelty. Odom v. Odom, 36 Ga. 286. What constitutes cruel treatment in the meaning of the law is a question of law for the court. Gholston v. Gholston, 31 Ga. 628. So important to society and the moral tone of a community is the preservation of the relation voluntarily entered into by husband and wife, that judges should not permit a severance of that relation where the testimony fails to show that the complaining party is entitled to a divorce under a ground recognize^ by law. Indeed the statute makes it the duty of the judge to see that the grounds are legal, and. sustained by proof. Civil Code, §2455. In this case the testimony did not make a case of cruel treatment as defined in Ring v. Ring, and a nonsuit was properly granted.

Judgment affirmed.

All the Justices concur.