Phinizy v. Phinizy

114 S.E. 185, 154 Ga. 199, 1922 Ga. LEXIS 331

Opinion

Fish, C. J.

(After stating the foregoing facts.)

The court did not err in overruling the demurrer to the plaintiff’s amendment of his petition, in which he set up cruel treatment as a new ground of divorce. The first ground of the demurrer is, that the amendment introduces a new cause of action. This has been ruled adversely to the defendant. Zachary v. Zachary, 141 Ga. 404 (81 S. E. 120).

The second ground of the demurrer 'is, that the allegations of the amendment are insufficient to constitute such cruel treatment as will authorize the grant of a divorce under our divorce statute. “In case of cruel treatment or habitual intoxication by either party, the jury, in their discretion, may grant either a total or a partial divorce.” Civil Code (1910), § 2946. Our statute does not define what is meant by cruel treatment; but this court has defined it. It “ 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.” Ring v. Ring, 118 Ga. 183 (44 S. E. 861, 62 L. R. A. 878); Stoner v. Stoner, 134 Ga. 368 (67 S. E. 1030; Miller v. Miller, 139 Ga. 282 (77 S. E. 21); Skellie v. Skellie, 152 Ga. 707 (111 S. E. 22).

It is alleged that prior to February, 1915, the wife was repeatedly and wilfully guilty of acts of cruel treatment towards the husband, thereby injuring his health, disturbing his peace of mind, greatly impairing his nervous system, and involving his general health, said conduct and cruel treatment resulting from frequent outbursts of passion on her part, which culminated at their Greene street home in Augusta, Georgia, during the month of November, 1913, he being unable to recall the exact date, in an attack by his wife on him while alone in their said home, when wilfully and without justification she suddenly and violently and with her utmost strength seized him with both her hands by his throat in an effort to choke him, thereby wilfully inflicting upon him bodily pain, and when he had forcibly disengaged her grasp from his throat, and while she was violently struggling to inflict further bodily pain on him, she exclaimed, “If I had a pistol, I would kill you.” It is further alleged that the wife’s conduct on that occasion convinced the husband that when she was seized with such outbursts of passion she was dangerous, that he became apprehensive that she would carry out her threat against his life, that, while they lived in the same house together for some time thereafter, they did not live together as husband and wife, and that he had never condoned any of the alleged acts of cruelty in any manner whatever. These allegations constitute a case of cruel treatment, and upon due proof thereof the jury would be authorized, in their discretion, to grant either a partial or total divorce. Pierce v. Pierce, 145 Ga. 886 (89 S. E. 1045).

The next ground of demurrer is, that the allegation in the amendment, that the husband left the wife on account of her cruel treatment of him, is in direct conflict with the allegation in the original petition, that the wife had deserted the husband.

The causes of action must be inconsistent, to put the plaintiff to his election to dismiss one of them, or to have the entire suit dismissed. Timmerman v. Stanley, 123 Ga. 850(4), 855 (51 S. E. 760, 1 L. R. A. (N. S.) 379). Inconsistent allegations of fact, if such there be, unless they constitute inconsistent causes of action, will not work the dismissal of the suit. We have seen that desertion and cruel treatment do not constitute inconsistent causes of action, but make only different bnt harmonious grounds of divorce. So we are of the opinion, that the court did not err in overruling the general demurrer to the amendment; and we are likewise of the opinion, that the special grounds of demurrer are without substantial merit.

We will now consider the question, whether the verdict is without sufficient evidence to support it. To the consideration of this point we have given long and patient thought. Having reached the conclusion that the general demurrer to the amendment, setting up cruel treatment, was properly overruled, the plaintiff would be entitled to a verdict if he proved his case substantially as laid. The decision on the demurrer thus becomes conclusive. Sims v. Ga. Ry. & El. Co., 123 Ga. 643 (51 S. E. 573); Brooks v. Rawlings, 138 Ga. 310 (75 S. E. 157); Tompkins v. American Land Co., 139 Ga. 377(4) (77 S. E. 623); Bailey v. Ga. & Fla. Ry., 144 Ga. 139 (86 S. E. 326); Benson v. Andrews, 149 Ga. 758 (102 S. E. 148).

In his original petition the husband alleged that his wife had wilfully deserted him, and that her desertion of him had been continuous since 1915. The allegations of the amendment, which set up, for the first time, the cruel treatment of himself by his wife as a ground of divorce, are as follows: (1) that the wife was repeatedly and wilfully guilty of acts of cruel treatment towards the husband; (2) that these acts of cruel treatment injured his health, greatly impaired his nervous system, and involved his general system; (3) that her said conduct and cruel treatment resulted from frequent outbursts of passion on her part; (4) that these outbursts of passion culminated in an assault upon him by his wife in November, 1913; (5) that this assault was wilful and without justification; (6) that this assault was effected by the wife suddenly and violently, and with her utmost strength, seizing him with both hands by his throat, in an effort to choke him; (7) that the wife thereby wilfully inflicted upon him bodily pain; (8) that when he had finally disengaged her grip from his throat, and while she was violently struggling to inflict further bodily pain upon him, she exclaimed that if she had a pistol she would shoot him; (9) that, becoming apprehensive that his wife would carry out her threat against his life, he separated from her, and had never condoned any of said acts of cruelty in any manner. This is the plaintiff’s case on paper. Does he make it out by his proof ?

So far as the ground of desertion is concerned, the husband wholly failed to sustain the same by proof. On the contrary, on July 22, 1915, he and his wife entered into a written contract providing, among other things, for the support of the wife, wherein it is recited that they were living in a state of separation, and wherein they expressly agreed to continue to live in such state. Here the husband consents to their separation. This killed his right to a divorce on this ground. Civil Code (1910), § 2948; Word v. Word, 29 Ga. 281; McCord v. McCord, 140 Ga. 170 (78 S. E. 833); 19 C. J. 64, § 120.

How stands the proof upon the subject of cruel treatment? There is no proof of any physical violence inflicted by the wife upon the husband prior to November, 1913. The husband testifies that the wife, prior to this date, indulged in outbursts of passion, and would get in these moods very often. Otherwise there was no evidence that the wife “ was repeatedly and wilfully guilty of acts of cruel treatment towards plaintiff,’’ as alleged in this amendment. Tlrere was evidence of but a single act of violence, which took place when the wife was in a rage. As a rule, a single act of personal violence is not considered cruel treatment. Nye’s Appeal, 126 Pa. 341 (17 Atl. 618, 12 Am. St. R. 873); Hoshall v. Hoshall, 51 Md. 72 (34 Am. R. 298); Hardie v. Hardie, 162 Pa. 227 (29 Atl. 886, 25 L. R. A. 697); Fritz v. Fritz, 138 Ill. 436 (28 N. E. 1058, 14 L. R. A. 685, 32 Am. St. R. 156); Cutler v. Cutler, 2 Brewst. 511; Finley v. Finley, 9 Dana (Ky.), 52 (33 Am. D. 528); Joyner v. Joyner, 6 Jones’ Eq. (59 N. C.) 322 (82 Am. D. 421); Reed v. Reed, 4 Nev. 395. But it has been held that two such acts alone may furnish ground for divorce. Sharp v. Sharp, 16 Ill. App. 348; Campbell v. Campbell, 27 Ill. App. 309; Farnham v. Farnham, 73 Ill. 497; Sharp v. Sharp, 116 Ill. 509 (6 N. E. 15). Especially is this so when the assaults are accompanied by violent and indecent language. Day v. Day, 56 N. H. 311. It has been asserted that no single act of cruelty, however severe, that falls short of endangering life, is sufficient to justify a divorce. May v. May, 62 Pa. St. 210; Nye’s Appeal, supra.

Yet a single act of cruelty may be so severe and atrocious as to justify a divorce. Richards v. Richards, 1 Grant (Pa.), 391; May v. May, supra; Nye’s Appeal, supra; 9 R. C. L. 339, § 119.- The actual commission of a single act of cruel and inhuman treatment, accompanied by circumstances indicating a probability of a repetition of similar conduct, will warrant a divorce. Beyer v. Beyer, 50 Wis. 254 (6 N. W. 807, 36 Am. Rep. 848). But this assault was accompanied by a declaration that if she had a pistol she would shoot her husband; and it was for the jury to say, whether the two together were sufficient to make the husband apprehensive of danger to his life.

However, as courts are loath to grant a divorce for a single act of physical violence, the facts and circumstances accompanying its infliction should be fully laid before the jury. The full history of the assault in this case should have been given to the jury.

It is alleged that it was wilful and without justification. The burden was on the plaintiff to make good this allegation. Did he carry this burden? When asked by his counsel, if he provoked the difficulty of November, 1913, which resulted in the separation, the plaintiff replied that he did not think he provoked it, and he could not recall provoking it. He does state that his wife would get into those moods very often, especially when she was very tired, and on the day of the difficulty she had been to a card party and had come home very tired. He does not say that her tired condition was the cause of her effort to choke him. On his cross-examination he stated that he might have at times provoked these outbursts of anger on the part of his wife. The evidence fails to show the origin, cause, and circumstances of the wife’s effort to choke her spouse. It is necessary to allege and prove the circumstances connected with the assault charged, and the cause which brought it about. Joyner v. Joyner, supra; Nogees v. Nogees, 7 Tex. 538 (58 Am. D. 78); White v. White, 84 N. C. 342. It is alleged that it was without justification; but the proof fails to sustain this important allegation. Whether it was justifiable depends upon the circumstances attending the origin and progress of this row, 'about which the evidence of the husband is silent. Such a showing is specially demanded in case of a long lapse between the alleged acts of cruel treatment and the bringing of a suit for divorce on that ground. More than seven years elapsed between the cruel treatment and the filing of the plaintiff’s action for divorce. When he filed his suit it was based upon the ground of desertion; and the ground of cruel treatment seems to have escaped his attention, and was entirely omitted from his application for divorce. More than seven years had gone by when the husband amended his application and set up this ground. It is true we have no statute of limitations applicable to suits for divorce, but “ the lapse of time between the occurrence of a ground for divorce and the application therefor may be considered by the jury, and, if not satisfactorily explained, may be good ground for refusing the divorce;” and “ if the interval between the offense, when known, . . and the bringing of the suit be very long, a court and jury should be indisposed to relieve a party who appears to have slumbered over it, unless some satisfactory reason be shown.” Mosely v. Mosely, 67 Ga. 92; Flynn v. Flynn, 149 Ga. 693 (101 S. E. 806).

The evidence for the plaintiff failing, to show the origin, cause, and circumstances of the frequent outbursts of passion on the part of the wife, and of the culminating act of cruelty, on which the plaintiff mainly relies for a divorce, the same failing to show that this assault was without justification, and the plaintiff testifying that he might, in part, have been the cause of the outbursts of temper on the part of his wife, the verdict is -without evidence to support it, and the learned trial judge erred in not setting it aside.

Did the husband condone the alleged cruelty of his wife? The last act of cruelty on the part of the wife occurred in November, 1913. In the summer of 1914, the wife visited White Sulphur Springs in Virginia, and thence went to Atlantic City. While the wife was at White Sulphur Springs, the husband visited her, and he admits that while there he spent two nights in the same room in a hotel with his wife. The wife testified that on this occasion the husband indulged in sexual intercourse with her. This the husband denied, and testified that, while he and his wife slept in the same room, they slept in separate beds. The incredulous might doubt and deny this testimony of the husband, but a confiding jury of the vicinage could believe the husband and discredit the wife. So we must deal with the case from the standpoint of the husband’s testimony that he did not have sexual intercourse with his wife during the nights he slept in the same room with her at the hotel at White Sulphur Springs The wife testified, that at Atlantic City during the same summer her husband again slept with her in the same room at their hotel, and that her .husband again indulged in sexual intercourse. The husband could not recall this occurrence at Atlantic City.

So the question is narrowed down to a single point, and that point is, does the fact that the husband admits that after- acts of cruel treatment, he occupied with his wife the same room in a hotel at a watering place, but testifies that he slept in a separate bed, and did not have sexual intercourse with his wife, amount to condonation of the past cruel treatment, so as to prevent the grant to him of a divorce on that ground ? “ If there has been a voluntary condonation and cohabitation subsequent to the acts complained of, and with notice thereof, then no divorce shall be granted.” Civil Code (1910), § 2948. Condonation is forgiveness, either express or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Odom v. Odom, 36 Ga. 286 (5); Davis v. Davis, 134 Ga. 804 (68 S. E. 594, 30 L. R. A. (N. S.) 73, 20 Ann. Cas. 20); Cuming v. Cuming, 135 Mass. 386 (46 Am. R. 476).

Condonation is more readily presumed against the husband than the wife. Odom v. Odom, supra. The fact that the husband had a friendly interview with his wife, and requested her to return home and live with him, did not amount to condonation. Johns v. Johns, 29 Ga. 718 (3). It is sufficient proof of condonation, that the husband, after knowing of his wife’s offense, visits her and occupies at such times the same bed. Reed v. Reed, 62 Ark. 611 (37 S. W. 230); Bordeaux v. Bordeaux, 30 Mont. 36 (75 Pac. 524), 32 Mont. 159 (80 Pac. 6); Todd v. Todd (N. J.), 37 Atl. 766. Cohabit means “to dwell together.” Davis v. Davis, supra. So strong is the inference that marital relations are resumed where the parties cohabit, that it has been held, where a wife, after filing suit for divorce, went with her husband to a hotel, and there occupied the same room and lived with him for some months, that this conduct was inconsistent with the maintenance of her suit for divorce, although she declared that they did not occupy the same bed or cohabit. Lee v. Lee, 51 Ill. App. 565. It has also been held that this is the law, even though the husband testifies that he did not take off his clothes, and furthermore that he did not have sexual intercourse with the wife, other testimony being to a contrary effect. It has been likewise decided, that, notwithstanding the testimony of the parties under such circumstances that there was no sexual connection, the court will draw the usual inference from their conduct. Todd v. Todd (N. J.), 37 Atl. 766; Tilton v. Tilton, 16 Ky. Law R. 538 (29 S. W. 290). All the authorities agree that, if they occupy the same room and bed, a strong presumption of marital intercourse arises, and a consequent condonation of the offense follows. Burns v. Burns, 60 Ind. 259; Toulson v. Toulson, 93 Md. 754 (50 Atl. 401); Rogers v. Rogers, 67 N. J. Eq. 534 (58 Atl. 822); Hann v. Hann, 58 N. J. Eq. 211 (42 Atl. 564); Marsh v. Marsh, 13 N. J. Eq. 281; Karger v. Karger, 19 Misc. 236 (44 N. Y. Supp. 219); Hall v. Hall (Eng. 1891), P. 302. But this presumption may be rebutted. Brown v. Brown, 164 Ill. App. 589; Hann v. Hann, Hall v. Hall, supra. Is such strong presumption overcome by the statement of the husband, that, while he occupied the same room at the hotel with his wife for two nights, they did not sleep in the same bed, and that they did not indulge in sexual commerce, where the wife testified that he'did have sexual intercourse with her, and where

the husband wholly failed to give the facts and circumstances under which he found himself occupying the same room with his wife at a fashionable watering place? We do not deem it necessary, for the proper decision of this case, to answer this question, but refer to Todd v. Todd (N. J.), 37 Atl. 766, for an interesting discussion of this situation. Sexual intercourse is not a necessary element of condonation. Where it occurs it is conclusive evidence of condonation. A single act of sexual intercourse by the innocent spouse, after the discovery of the offense, is ordinarily sufficient to constitute condonation, especially against the husband. Farmer v. Farmer, 86 Ala. 322 (5 So. 434); Shirey v. Shirey, 87 Ark. 175 (112 S. W. 369); Phillips v. Phillips, 102 Ark. 679 (144 S. W. 914); Delliber v. Delliber, 9 Conn. 233; Toulson v. Toulson, 93 Md. 754 (50 Atl. 401); Harper v. Harper, 29 Mo. 301; Todd v. Todd (N. J.), 37 Atl. 766; Marsh v. Marsh, 13 N. J. Eq. 281; Pitts v. Pitts, 52 N. Y. 593; Doe v. Doe, 52 Hun, 405 (5 N. Y. Supp. 514); Karger v. Karger, supra; Sparks v. Sparks, 94 N. C. 527; Eggerth v. Eggerth, 15 Or. 626 (16 Pac. 650).

But, as stated above, sexual intercourse is not a sine qua non of condonation. It has been held that the dismissal of a divorce suit, pursuant to an agreement to resume marital relations, constituted a complete condonation of the alleged offense. Shirey v. Shirey, 87 Ark. 175 (112 S. W. 369). “A husband completely condoned a known adultery by expressly forgiving the wife, telling others they were reconciled, and going with her three miles to their home, although in a few minutes thereafter he renounced the reconciliation because of his brother’s objection, and took her directly to her parents, and cohabitation and sexual intercourse were not resumed.” Bush v. Bush, 135 Ark. 512 (205 S. W. 895, 6 A. L. R. 1153). “One who admits that after being informed of his wife’s adultery, and believing it, he occupied the same room with her at a house other than theirs, and, as she claims, had intercourse with her, will be held to have condoned her offense,” although the husband denied that he had sexual intercourse with the wife. Todd v. Todd (N. J.), 37 Atl. 766. If this were not the case, the impotent husband could never condone the wife’s divorceable offenses. Condonation is not revocable at will. Davis v. Davis, supra.

Dnder the admitted facts, the husband, by his conduct at the White Sulphur Springs, condoned the alleged previous cruelty of the wife. This being so, the verdict granting him a divorce was contrary to the law and evidence, and should have been set aside.

The above holdings render it unnecessary to consider any of the other alleged errors.

Judgment reversed.

All the Justices concur.