Hirsch v. Hirsch, 21480

• Decision Date: 08 February 1962
• Docket Number: No. 21480,21480
• Citation: 123 S.E.2d 915,217 Ga. 590
• Parties: Marie Fox HIRSCH v. Harold D. HIRSCH.
• Court: Georgia Supreme Court

Page 915

123 S.E.2d 915

217 Ga. 590

Marie Fox HIRSCH v. Harold D. HIRSCH.

No. 21480.

Supreme Court of Georgia.

Feb. 8, 1962.

Syllabus by the Court

1. The allegations of fussing and nagging in the petition for divorce based on cruel treatment were sufficient as against a general demurrer.

2. There was no absolute condonation in the instant case so as to bar the petitioner from proceeding with his original divorce petition as amended.

Heyman, Abram, Young, Hicks & Maloof, Morris B. Abram, John H. Hicks, Atlanta, for plaintiff in error.

M. K. Pentecost, Jr., John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., Atlanta, for defendant in error.

ALMAND, Justice.

The judgment under review is one overruling a general demurrer to an amended petition seeking a divorce on the ground of cruel treatment.

1. The main question is whether the allegations of the amended complaint charging the defendant wife with nagging are sufficient to charge her with the wilful infliction of pain, bodily or mental, such as reasonably justifies the husband to apprehend damages to his life or health under Code § 30-102(10).

The allegations of cruel treatment are as follows: 'That this cruel treatment of the plaintiff by the defendant consisted in her continuously fussing and nagging at the plaintiff.'; 'That this cruel treatment of the plaintiff by the defendant was wilful and intentional on her part and has seriously affect the health of the plaintiff.'; '* * * the defendant has since said conditional reconciliation continuously fussed and nagged at the plaintiff to such an extent that it has seriously affect the health of the plaintiff and has made it impossible for plaintiff to continue living with the defendant.'; and '* * * shows that the defendant has since said second conditional reconciliation continously fussed and nagged at the plaintiff to such an extent that it has seriously affected the health of the plaintiff and has now made it impossible for plaintiff to continue living with the defendant.' In a final amendment to the plaintiff's petition it was alleged '* * * that the said acts of cruel treatment by the defendant upon plaintiff were wilfully inflicted upon the plaintiff by the defendant for the purpose of injuring and harming plaintiff's health, and that said cruel treatment by the defendant did harm and adversely affect plaintiff's health and did cause plaintiff to be apprehensive of danger to his health and life * * * that said cruel treatment consisted in the defendant's continuously, over the past several years, fussing and nagging at plaintiff and quarreling with and harassing plaintiff * * * that defendant would constantly nag and fuss at plaintiff, and even after plaintiff would go to bed at night defendant would keep him awake by nagging, fussing and harassing plaintiff about insignificant and unimportant matters * * * that defendant's nagging, fussing and harassing finally became to unbearable that plaintiff was forced to move out of the bedroom of the parties and into another room, but that the defendant would thereafter come into said other room where plaintiff was and nag, argue, fuss at and harass plaintiff. * * * That defendant's nagging and fussing was a continuous thing, and that she would constantly nag at and harass plaintiff at the home of the parties and when they would be out together at other places, both public and private. * * * That as heretofore set out, the said conduct of the defendant toward the plaintiff did adversely and harmfully affect plaintiff's health, and caused plaintiff to be apprehensive of danger to his health and life.'

We are of the opinion that these allegations are sufficient, as against a general demurrer, to charge cruel treatment. In Alford v. Alford, 189 Ga. 630(2), 7 S.E.2d 278, Justice Warren Grice, in a full-bench decision, in discussing the quantity and quality of nagging as constituting cruel treatment said, 'There are certain...