Lowry v. Lowry
| Docket Number | 7389. |
| Decision Date | 16 April 1930 |
| Citation | 153 S.E. 11,170 Ga. 349 |
| Parties | LOWRY v. LOWRY. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Charge defining preponderance of evidence as superior weight of evidence sufficient to incline "your minds" to one side of issue did not require new trial (Civ. Code 1910, § 5731).
Civ Code 1910, § 5731, defined preponderance of evidence as superior weight of evidence sufficient to incline reasonable and impartial mind to one side of issue, rather than to other.
"Cruel treatment" as ground for divorce is willful infliction of pain, reasonably justifying apprehension of danger to life, limb, or health.
Charge defining cruel treatment in divorce action omitting element of willfullness held reversible error.
Allowance of permanent alimony to divorced wife is for jury when husband obtains divorce for cruel treatment.
Charge authorizing jury in divorce suit to provide permanent alimony for wife according to condition of husband and source of property held authorized (Civ. Code 1910, § 2954).
Wife sued for divorce, if desiring further instruction on permanent alimony, should have requested same.
Charge defining alimony, and stating it is either temporary or permanent, held not misleading in view of charge limiting jury to permanent alimony only.
Charge on cases where permanent alimony is granted held not erroneous for failure to define expression "as considered under law in given section."
Party desiring definition of expression used in charge should specially request same.
Neither of married pair can testify against other concerning communications or introduce in evidence writings received under seal of confidence during coverture, unless waived (Civ. Code 1910, § 5785).
Only confidential communications between husband and wife are excluded from evidence, and not communications which are not privileged (Civ. Code 1910, § 5785).
Charge excluding all communications between husband and wife in divorce suit held error, in view of nonconfidential communications on which wife relied to establish cruel treatment by husband.
Ruling at conclusion of evidence, specifying communications between husband and wife which were excluded, did not cure error in charge to disregard all communications between husband and wife.
Conflict between ruling on exclusion of specific communications between husband and wife in divorce action, and instruction to disregard all communications, held misleading.
Charge that divorce granted one party should not be granted other party held error in libel by husband for divorce for cruel treatment in which wife filed cross-action on same ground (Civ. Code 1910, § 2952).
Civ Code 1910, § 2952, provided that when libel for divorce was instituted respondent may in plea and answer recriminate and ask for divorce and authorized jury to grant divorce to such party if warranted by evidence.
"Condonation" is express or implied forgiveness of breach of marital duty with implied condition that offense shall not be repeated, and is more readily presumed against husband (Civ. Code 1910, § 2948).
If there is no breach of condition after condonation and cohabitation, condonation stands as absolute and is not revocable at will.
Condonation will not prevent divorce if on condition which has been broken.
Charge in divorce action that condoning party cannot forgive and cohabit with forgiven party and reserve right to assert acts as means of obtaining divorce, in absence of further misconduct, held proper.
Instruction on grant of total or partial divorce held required, if authorized, in divorce for cruel treatment.
"Permanent alimony" is allowance husband must pay wife for support where legally separated or divorced, and may be granted by jury in divorce case (Civ. Code 1910, § 2954).
Instruction on permanent alimony should indicate that it is intended for permanent support of wife (Civ. Code 1910, § 2954).
Instruction on permanent alimony allowable to wife as lump sum or monthly allowance for so many months within jury's discretion held misleading.
Charge requiring jury to look at case from own standpoint and standpoint of fellow jurors held not erroneous.
Charge that grant of alimony and amount thereof, if granted, was for jury held proper.
Exceptions to charge as contradicting other portions of charge not set out in ground of motion for new trial held insufficient.
Correct statement of law is not erroneous because of failure to charge another applicable principle.
Communication by husband suing for divorce, informing wife that if she did not believe another was waiting for him to write her a note, held not confidential communication between husband and wife.
Party to action instituted in consequence of adultery or to any action for breach of promise of marriage is generally incompetent to testify (Civ. Code 1910, § 5861).
Words "in consequence," in statute disqualifying party to action in consequence of adultery from testifying, apply to initiatory as well as to proximate cause of suit (Civ. Code 1910, § 5861).
Civ. Code 1910, § 5861, provided that nothing contained in previous section relating to competency of witnesses shall apply to any action instituted in consequence of adultery or to any action for breach of promise of marriage.
Wife filing cross-action for divorce for cruel treatment to husband's action on same ground may testify to cruel treatment.
Wife seeking divorce for cruel treatment against husband filing cross-libel for adultery may testify to cruel treatment but not to adultery.
In suit for divorce for adultery and cruel treatment, either party may testify to cruel treatment, but not to adultery.
Where both parties seek divorce for cruel treatment, neither can testify to adultery in support of such ground.
Error from Superior Court, Bartow County; C. C. Pittman, Judge.
Suit for divorce by Tanner Lowry against L. T. Lowry, in which defendant filed a cross-bill. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.
Reversed.
Communication by husband suing for divorce, informing wife that if she did not believe another was waiting for him to write her a note, held not confidential communication between husband and wife.
G. H. Aubrey, Wm. A. Ingram, and Wm. T. Townsend, all of Cartersville, for plaintiff in error.
Whitaker & Whitaker and Finley & Henson, all of Cartersville, for defendant in error.
Syllabus OPINION.
Dr. Lowry brought suit against his wife for divorce upon the ground of cruel treatment, and for injunction to restrain her from molesting him in the conduct of his hospital. The wife filed her answer and cross-bill, in which she prayed for a total divorce upon the ground of cruel treatment, and for temporary and permanent alimony. On the trial of the case the jury granted the husband a total divorce, removed the disabilities of the wife, and gave to the wife alimony in the sum of $50 per month for twelve months. The wife moved for a new trial upon the general grounds, and by amendment added certain special grounds.
1. The court charged the jury as follows: "By a preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline your minds to one side of the issue rather than to the other side." In her motion for new trial the wife excepted to this charge, upon the ground that it is an incorrect statement of the law, that the same was prejudicial to her rights, and was calculated to mislead the jurors into believing that whatever they did or thought to be the truth of the transaction was justified by this charge of the court. Movant insists that the use of the words "your minds" makes this an incorrect statement of the law, but that a correct statement of the law is as follows: "By a preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not sufficient wholly to free the mind from a reasonable doubt, is yet sufficient to incline the mind of an impartial juror seeking to do right and to render a just verdict to one side of the issue rather than to the other." The true rule is as follows: "By preponderance of evidence is meant that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue, rather than to the other." Civil Code 1910, § 5731.
(a) The charge given and the charge movant insists should have been given are both variant from the rule laid down in the Code. While it would be better for the court, in charging the jury upon the subject of preponderance of evidence, to adhere to the rule as stated in the above section of the Code ( Hill v. Chattanooga, etc., Co., 21 Ga.App. 104 (7), 93 S.E. 1027), the use of the words "your minds," in the charge given, and the slight departure from the true rule, did not require the grant of a new trial. Shingler v. Bailey, 135 Ga. 666 (3), 70 S.E. 563. The other exceptions to this charge are without merit and do not require the grant of a new trial.
2. The court charged the jury as follows: "I charge you gentlemen, that cruel treatment, within the meaning of our law, is the infliction of pain, bodily or mental, upon the complaining party, such as to reasonably justify an apprehension of danger to life, limb or health." Cruel treatment as a ground for divorce is the ...
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