Phinizy v. Phinizy

• Decision Date: 19 September 1922
• Docket Number: 2858.
• Citation: 114 S.E. 185,154 Ga. 199
• Parties: PHINIZY v. PHINIZY.
• Court: Georgia Supreme Court

114 S.E. 185

154 Ga. 199

PHINIZY v. PHINIZY.

No. 2858.

Supreme Court of Georgia

September 19, 1922

Syllabus by the Court.

The amendment to the plaintiff's petition, setting up cruel treatment as a ground of divorce, was not subject to the grounds of demurrer, either general or special.

(a) A petition for divorce on the ground of desertion can be amended by adding cruel treatment as a ground.

(b) The allegations of the amendment are sufficient to constitute a ground of divorce on the ground of cruel treatment.

(c) "Cruel treatment" is the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies the apprehension of danger to life limb, or health.

(d) The allegations of the original petition and the amendment thereto do not seek to assert inconsistent rights and remedies, and do not put the plaintiff to his election to dismiss one of them or have his entire petition dismissed.

The verdict is contrary to the law and evidence, and a new trial should have been granted on this ground:

(a) Having decided 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.

(b) The husband and wife having entered into a written agreement providing, among other things, for the support of the wife and for alimony, wherein it is recited that they were living in a state of separation, and in which they expressly agreed to continue to live in such state, this precluded the grant to the husband of a divorce on the ground of desertion.

(c) As a general rule, a single act of personal violence is not considered cruel treatment, but two or more such acts alone may furnish ground for divorce.

(d) Yet a single act of cruelty may be so severe and atrocious as to justify a divorce; and a single act of cruel and inhuman treatment, accompanied by circumstances indicating a probability of a repetition of similar conduct, will warrant a divorce.

(e) As the courts are loath to grant a divorce for a single act of personal violence, where a suit for divorce is based upon a single act of violence and upon frequent previous outbursts of temper, the origin of such violence and outbursts of temper, and the circumstances attending the same, should be fully laid before the jury, and it should be made to appear that the wife was at fault, and the husband did not provoke the same, especially when cruel treatment, as a ground of divorce, was not insisted upon until more than seven years after its occurrence.

"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.

(a) Condonation is more readily presumed against the husband than the wife.

(b) Where a husband, after the wife's alleged cruel treatment, visited her and slept for two nights in the same room with her at a hotel, the wife testifying that he had sexual intercourse with her on this occasion, but the husband denying such intercourse and claiming that they slept in different beds, such conduct of the husband, in the absence of any explanation on his part of this occurrence, amounted to condonation of the past offenses of his wife, and will prevent the grant of a divorce to him.

(c) Sexual intercourse is not an essential element of condonation, although it is conclusive evidence thereof.

The above rulings make it unnecessary to consider any of the other grounds of alleged error.

Additional Syllabus by Editorial Staff.

Where a wife's assault on her husband, in which she attempted to choke him, was accompanied by a declaration that if she had a pistol she would shoot him, it was a question for the jury whether this was sufficient to make the husband apprehensive of danger to his life.

"Cohabit" as respects condonation of grounds for divorce, under Civ. Code 1910, § 2948, means to dwell together.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Suit for divorce by Jacob Phinizy against Mary V. Phinizy. Judgment for plaintiff, and defendant brings error. Reversed. See, also, 152 Ga. 694, 111 S.E. 433; 114 S.E. 193.

On November 20, 1920, Jacob Phinizy filed his petition for divorce against Mary V. Phinizy, and alleged: (1) That on April 6, 1899, he and Mary V. Foster intermarried in Richmond county, Ga.; (2) that they lived together as husband and wife until March 9, 1915; (3) that he has been a bona fide resident in the county of Richmond, state of Georgia, since 1879; (4) that the defendant is a resident of said county; (5) that on March 9, 1915, the defendant deserted him in said county of Richmond, and her desertion of him since said date has been willful and continuous; (6) that he, by agreement in writing, signed by himself and the defendant, dated July 22, 1915, and recorded in the clerk's office of the superior court of Richmond county, entered into a contract to pay defendant certain monthly allowances, which were accepted by the defendant in lieu of all alimony, and which payments have been duly made from the date of said agreement, which binds him to pay said sums set forth therein during the lifetime of the defendant; and that for this reason he does not set forth a schedule of his property for the purpose of determining the amount of temporary and permanent alimony that might be due the defendant. He prayed for a total divorce. On June 22, 1921, he amended his petition and alleged: (7) "That for several years prior to February, 1915, the defendant was repeatedly and willfully guilty of acts of cruel treatment towards plaintiff, thereby injuring his health, disturbing his peace of mind, and causing his nervous system to become greatly impaired and his general health involved; that her said conduct and cruel treatment from frequent outbursts of passion on her part, which culminated on an occasion at their Greene street home in Augusta, Ga., during the month of November, 1913, the exact date petitioner being unable to recall, while they were alone in their said home, when willfully, without justification, defendant suddenly and violently, and with her utmost strength, seized petitioner with both of her hands, by his throat, in an effort to choke him, thereby willfully inflicting upon petitioner bodily pain, and when petitioner had forcibly disengaged defendant's grip from his throat, and while she was violently struggling to inflict further bodily pain upon him, she exclaimed, "If I had a pistol I would kill you." (8) "That defendant's conduct on said occasion convinced petitioner that when defendant was seized with such outbreaks of passion or temper she was dangerous, and made him apprehensive that she would carry out her threat against his life." (9) "That thereafter, while defendant and plaintiff lived in the same house together, they did not live together as husband and wife, and he never condoned any of the alleged acts of cruelty in any manner whatever." (10) "That during all said time petitioner was making ample provision for the support of said wife, furnishing her means and funds in accordance with all her requirements and demands." (11) That, in addition to the original grounds of willful desertion set forth in the original petition, petitioner is entitled to a divorce from the defendant on the ground of said cruel treatment; and he prays that he be granted a total divorce. (12) He struck from the second paragraph of his petition the words, "9th day of March, 1915," and inserted in their place the words "______ day of November, 1913, the exact date petitioner cannot recall," and he struck from paragraph 5 of his petition the same words, and inserted in their place the same words. The defendant demurred to this amendment, on the grounds: (1) That it introduced a new cause of action; (2) that the allegations of the amendment were not sufficient to constitute cruel treatment; (3) that the allegation in paragraph 10, to the effect that the reason he lived apart from his wife after February 15, 1915, was her acts of cruelty, is in direct conflict with the allegation in the original petition that defendant deserted plaintiff; and (4) various special grounds of demurrer. The trial judge overruled the demurrer, to which the defendant filed exceptions pendente lite, upon which she assigned error.

On the allowance of the plaintiff's amendment to his petition setting up cruel treatment, the defendant moved, in writing verified by her affidavit, for a continuance, on the ground that she and her counsel were surprised by this amendment. It was shown that a copy of this amendment had been served on counsel for the defendant on June 7, 1921. The defendant alleged that she was less prepared for trial, because she was fully prepared for trial on the original ground of desertion, and because it required entirely different evidence to disprove the new ground of cruel treatment. She further alleged that the plaintiff's infidelities against his marriage vows were numerous; that she had written acknowledgment of said infidelities up to a certain date; that she desired to recriminate; and she requested the court to permit her to get together her proof of said infidelities for proper presentation. The court overruled the motion to continue, to which ruling the defendant filed exceptions pendente lite, and she assigned error thereon. The case proceeded to trial, and the following evidence was introduced:

The plaintiff testified that on April 6, 1899, he was married to the defendant, and they lived together as husband and wife until November, 1913. Mrs. Phinizy is a very difficult person to deal with. At that time, in one of her outbursts of temper, ...