Odom v. Odom , 36 Ga. 286 ( 1867 )

Warner, C. J.

The error assigned in this case is the refusal of the Court below to grant a new trial upon the several grounds specified in the motion therefor.

1. Because the Court erred in admitting the declarations of plaintiff when about to leave her husband’s house, in his absence, as testified to by Alice Haugabook, Josephine Haugabook, Mary T. Spivey, and Anna V. Spivey. It appears from the record, that when the plaintiff left the house of defendant, she took with her certain articles of furniture, and that the two sons of the defendant were present when she left, but the defendant himself was absent. This evidence was admissable for the purpose of explaining her motives and conduct, when in the act of leaving and taking the articles of furniture with her. See 3694th section of Code.

2. Because the Court erred in admitting in evidence the antenuptial settlement between the parties. This evidence was properly admitted for the purpose of showing the source from whence the property was derived, contained in the schedule. See 1676th section of Code.

3. Because the Court erred in admitting the evidence of the transfers of defendant’s property to his children by a former marriage, shortly before the separation of the parties. The transfers of his property by defendant, were alleged to have been fraudulent as against the rights of the plaintiff, and were therefore properly submitted to the jury as evidence conducing to prove that fact, in connection with other evidence which the plaintiff might think proper to introduce.

4. Because the Court erred in its charge to the jury, as to what constitutes “ cruelty,” under the law. In view of the various grades and conditions of mankind in society, it is extremely difficult to assert any definite rule, applicable to all classes of society, as to what will constitute legal cruelty. Legal cruelty may be defined to be, such conduct on the part of the husband, as will endanger the life, limb or. health of the wife, or create a reasonable apprehension of bodily hwrt. What must be the extent of the injury, or what particular acts will create a reasonable apprehension of personal injury,' will depend upon the circumstances of each case. The acts of cruelty must be such as to render cohabitation unsafe, or are likely to be attended with injury to the person or to the health of the wife. Evans vs. Evans, 4th Eng. Eccl. Rep., 312; Westmeath vs. Westmeath, ibid 270.

In view of the facts contained in this record as to the conduct of the defendant towards the plaintiff, there is no error in the charge of the Court to the jury, upon the question of cruelty.

5. Because the Court erred in charging the jury on the question of condonation. The 1673 section of the Code declares that “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.” We think that the charge of the Court, as given upon the state of facts disclosed by the record, was substantially correct. Condonation is a conditional forgiveness on a full knowledge of all antecedent guilt. Bramwell vs. Bramwell, 5th Eng. Eccl. Rep. 232. After a reconciliation, fresh acth of cruelty will revive acts of cruelty, and also of adultery. Worsley vs. Worsley, 6th Eng. Eccl. Rep. 249. Condonation is not so readily presumed against the wife, as'the husband. Knowledge of the guilt of the husband, and forgiveness by the wife, are not legally to be presumed, but must be clearly and distinctly proved, in order to bar her action. Durant vs. Durant, 3d Eng. Eccl. Rep. 319.

After carefully reviewing the several grounds of error assigned to the rulings of the Court below, we find no legal ground upon which (in our judgment) a new trial ought to be granted in this case, and the only remaining question for us to decide is, what is the legal effect of the verdict of the jury as to the sum of money awarded to the plaintiff. By the 1676th section of the Code, it is provided that a schedule of the property shall be filed, and that “the jury rendering the final verdict in the case may provide permanent alimony for the wife, either from the cmpus of the estate, or otherwise, according to the condition of the husband, and the source from which the property came into the coverture.” The 1688th section of tho Code declares, that “ alimony is an allowance out of the husband’s estate, made for the support of the wife when living separate from him. It is either temporary or permanent.” Permanent alimony is granted in the following cases: First, of divorce, as considered in section 1676 ; second, in cases of voluntary separation; third, where the wife, against her will, is either abandoned or driven off by her husband — Code, section 1693. Alimony is that allowance which is made to a woman for her support out of the husband’s estate. It is generally proportioned to the rank and quality of the parties. 1st Bl. Com., 441.

By the old law, as it stood at the time of the adoption of the Code, the property was to be equally divided between the children of the parties, unless the jury should think proper to allow either party a part thereof. Cobb’s Dig., 225. The Legislature, at the time of the adoption of the Code, must be presumed to have known what the old law was upon this subject. The term “ alimony,” as expressed in the Code, is therefore to be construed :n its legal technical sense. Permanent alimony is to be granted to the wife only in three cases — First, where there is a total divorce; second, in cases of voluntary separation; third, where the wife, against her will, is either abandoned or driven off by her husband. In each of the cases enumerated, permanent alimony is allowed for the support of the wife out of her husband’s estate. In case of a total divorce, is she entitled to anything more? Does the verdict of the jury in this case vest in the wife the absolute interest in the twelve thousand dollars, under the provisions of the Code, or does it vest in her that amount as permanent alimony out of her husband’s estate for her support and maintenance during life, according to her rank and condition in society? When we look to the 1697, 1698 and 1699th-sec-tions of the Code, regulating permanent alimony in the other two specified cases, the intention of the Legislature is clearly manifested in regard to permanent alimony. Our conclusion, then, is, that it was the intention of the Legislature that, in cases of total divorce, the jury might provide permanent alimony for the wife, either from the corpus of her husband’s estate, or otherwise, and that permanent alimony means a suitable provision for the support and maintenance of the wife, out of her husband^s estate, during her life, according to her rank and condition in the community in which she resides.

This construction of the Code, it is said, will operate harshly in this case, because the husband derived most of his property from his wife: still, it was his property, and the provision is made for the wife out of his estate. But suppose the husband had acquired no property by his wife, yet she is entitled to permanent alimony out of his estate for her support and maintenance during life; but would it be just and equitable at her death that the corpus of the property provided as permanent alimony for her support and maintenance out of her husband’s estate should go to her legal representatives instead of her husband or his legal representatives, when she had brought nothing into the family ?

The construction which we give to the Code must operate as a general rule, applicable to all cases as to the legal effect of granting permanent alimony out of the husband’s estate, where a total divorce is granted. It is quite probable it was the intention of the Legislature, in restricting the wife to permanent alimony for her support during life out of her husband’s estate, not to offer any inducement for husband and wife to dissolve the marriage contract from merely mercenary motives as to property. The legal effect of the verdict rendered by the jury in this case, under the provisions- of the Code, is to vest the amount found by them in the plaintiff as permanent alimony during her life only for her maintenance and support, according to her rank and condition in life.

Let the judgment of the Court below be affirmed.