Durham v. Durham

• Decision Date: 25 September 1923
• Docket Number: 3533,3534.
• Parties: DURHAM v. DURHAM (TWO CASES).
• Court: Georgia Supreme Court

119 S.E. 702

156 Ga. 454

DURHAM v. DURHAM (TWO CASES).

Nos. 3533, 3534.

Supreme Court of Georgia

September 25, 1923

Syllabus by the Court.

This being a suit by a wife against her husband for permanent alimony, it being alleged that the husband and wife were living in a bona fide state of separation, the court did not err in excluding from evidence the testimony of a witness to the effect that, prior to the separation of the husband and wife, he made improvements on a house which was upon a farm belonging to the complainant, and that the same were paid for by the husband; there being nothing in the evidence, so far as appears from this ground of the motion for new trial, to show how long before the separation the improvements were made nor the value of the same.

The court did not err in refusing to permit a witness for the complainant to testify that at one time he went to the house of the defendant and shot at him. This evidence was offered for the purpose of showing the state of feelings of witness toward the defendant; but it was not allowable to give testimony of particular events or particular acts upon the part of the witness, where he had not denied having unkindly feelings towards the defendant, but, rather, had indicated by his answers that his feelings towards him were not kindly.

Error is assigned upon the ruling of the court admitting in evidence a certain depreciatory remark set forth in the motion; but there is nothing in the ground of the motion to indicate to whom the witness referred as the person who made the remark quoted, nor to whom the person making the remark referred; and the court will not look to other parts of the record in order to make intelligible the assignment of error and to ascertain the materiality of the evidence.

The court did not err in admitting competent evidence to show what would be reasonable attorney's fees in the case this being a suit for permanent alimony and attorney's fees.

There is no merit in the exception to the following charge of the court: "Now I charge you, gentlemen of the jury, to begin with, I will give you the rule that would entitle the plaintiff to recover." In view of the fact that in other portions of the charge the court properly instructed the jury that whether the plaintiff was entitled to recover at all or not was a question for them to determine from the evidence under the instructions of the court, this charge was not likely to mislead the jury and cause them to believe "that the court intended for plaintiff to recover under the instructions he then proceeded to give them."

It is not error for the court to fail in his charge "to define the probative value of expert testimony on the question of disease and its communication, as charged in complainant's amendment, and as appears in the testimony of defendant."

The court erred in failing to give in the course of its instructions a definition of cruelty or cruel treatment, as those terms are defined in the law.

The failure of the court to define habitual drunkenness, in the absence of a written request to charge upon that subject, was not error. There is no such difference between the ordinary signification of this expression as derived from the definition given by lexicographers from the meaning of the expression in the law, as would cause the jury to fall into error upon this subject.

In view of the ruling which reverses the judgment of the court below and which has the effect of setting aside the verdict, it is unnecessary to pass upon the question made by the demurrer to the motion made by the defendant in the first case, who is plaintiff in error in the second case, to set aside so much of the judgment in the second case as awards attorney's fees.

Error from Superior Court, Douglas County; F. A. Irwin, Judge.

Suit by Nodie Durham against W. K. Durham for alimony and attorney's fees. Judgment for plaintiff, and new trial was denied. A demurrer to a petition by defendant to set aside the judgment in so far as it awarded attorney's fees was sustained, and defendant brings error in both cases. Judgment reversed in the first case, and bill of exceptions dismissed in the second case.

J. J. Barge, of Atlanta, for plaintiff in error.

J. H. McLarty, of Douglasville, and J. S. James, of Atlanta, for defendant in error.

ATKINSON J.

Mrs. Nodie Durham brought a suit for permanent alimony and attorney's fees, alleging that she and W. K. Durham, her husband, were living in a bona fide state of separation; that she had been forced to separate herself from the defendant, and declined to live with him as his wife, because of certain alleged acts of cruel treatment and habitual drunkenness upon the part of her husband. The defendant denied all the allegations as to cruel treatment and habitual drunkenness on his part; and further answered that he would be glad for his wife to return to his home and live with him. Upon the trial of the case evidence was submitted by both parties; and the jury, after the case was submitted under the charge of the court, returned a verdict for the petitioner, awarding her the sum of $900 as permanent alimony. The court thereupon entered a decree adjudging that the petitioner have and recover of the defendant the sum of $900 principal, and interest from a stated date; and in the decree it was adjudged that the petitioner recover of the defendant $300 for attorney's fees. The defendant made a motion for a new trial, which was overruled, and he excepted.

1-6. The rulings made in headnotes 1 to 6 require no elaboration.

7. Another ground of the motion for new trial assigns error upon the failure of the court to give to the jury "any legal definition of cruelty, by which they might judge the legal standard set up by the court, and left them purely to be governed by their own...