Lanier v. Lanier , 194 Ga. 799 ( 1942 )

1. That the judge failed to instruct the jury that they should specify in their verdict the disposition to be made of the scheduled property is not cause for new trial, since the jury expressly found that the wife was not entitled to permanent alimony; the expression "scheduled property," as used in the Code, § 30-115, having reference only to the property owned by the defendant at the time of the filing of the libel for divorce. Landis v. Sanner, 146 Ga. 606 (91 S.E. 688).

2. While the two verdicts awarding to the wife a total divorce on the ground of cruel treatment may have determined that there was no fault on her part, yet under all the evidence as to the financial and other circumstances of the parties, the material resources of each, the condition of the husband's health and his ability to pay, it can not be held that the verdict denying permanent alimony to the wife was contrary to law.

3. The verdict not being without evidence to support it, and having the approval of the trial judge, his denial of the wife's motion for new trial will be affirmed.

No. 14295. OCTOBER 15, 1942. REHEARING DENIED NOVEMBER 13, 1942. Mrs. Ola J. Lanier sued Homer A. Lanier for divorce on the ground of cruel treatment. She was awarded a total divorce. The jury denied her permanent alimony, and she moved for new trial because of such denial. Her motion was overruled, and she excepted. On the subjects affecting the question of permanent alimony, the evidence in part was as follows:

Dr. A. G. Funderburk testified for the defendant: "I am a practicing physician of Moultrie, Georgia. I have been practicing medicine since July 8, 1935. . . My examination of Mr. Lanier started in 1936, nearly five years ago. At the time of the first examination we took his blood pressure in both arms, and there was a marked variance in the left and right arm; his blood pressure in his left arm was 78 over 42, I believe was correct. His right arm was 68 or 70 along that way. For a man of his age it should be 120 over 80; I mean for a man between the ages of 20 and 30 years; and for a man of his age it should be somewhere between 130 to 140. In his left arm it was 78 over 42, and I believe 68 or 70 in his right arm. It was nearly as low as one half of what it should have been. For a normal man it would have been around 80. It was 40 to 42; that was about half of what it should have been. I have been treating him from time to time from 1936 on down to recently. He has been in my office a number of times since, and as much as three or four times a year. . . Any person suffering from the heart condition he has would be affected by manual labor, and any of those things tend to precipitate a heart attack, as the person only has a limited supply of blood to the heart, and nerve that supplies it would be overtaxed; and it is dangerous for them to do manual labor, or any type of occupation that would require exercise; they can not get the blood supply to their heart, due to the limited supply, and due to the sclerosis of the blood vessel. . . I have never seen a man recover from the condition Mr. Lanier is in. As a matter of fact, the reverse is true. For a man in that condition the average length of life is around 18 months to two or three years. However, we have known several cases to live much longer than that."

The plaintiff testified, in part: "I do not know how long Dr. Funderburk, in Moultrie, has been treating Mr. Lanier for his heart. I was in Athens when he had that heart attack, the first heart attack. He stayed in bed for three weeks. I was in Athens, and he wired me if he needed me he would let me know. I think he had Fred Lanier wire me, and told me he would wire me again if he wanted me to come. I did not go back on a visit, because we did not have the money to spend. . . The reason I did not come back was because he said it was a business proposition, and if he needed me he would let me know. The heart had weakened, and he had seen a physician; he just had to lie in bed and take his nourishment, and there was nothing much to do, and anybody could do that as well as I; and it was perfectly agreeable, so far as I knew, for me to stay."

As to his financial condition the husband testified, in part: "I do not own a foot of land clear, and did not at the time this law suit started. . . At the time she started this lawsuit I don't think all my property if sold at forced sale would have brought anything over the indebtedness. . . Since this suit started I have been carrying on my farming by mortgaging everything I had. The money, the $500 and $900, I deposited in the bank was borrowed from the bank to make the crop. I had to give crop mortgages in order to do that. I mean bills of sale. I tried to get a disaster loan, and was turned down. I did not get that Government loan. I believe I did get $100 through the Government plan."

There was testimony by both plaintiff and defendant as to a 700-acre farm in Hall County owned by the plaintiff's father at the time of his recent death, his will showing that this farm was left to his widow for her life, and after her death the plaintiff as one of his children was to receive a sixth interest therein. The widow at the time of the trial of this case was eighty-three years old, and the plaintiff was residing with her. The defendant in his testimony valued this farm at $40,000. After this case was argued, this court decided the case of Simmons v. Simmons, 194 Ga. 649 (22 S.E.2d 391), which makes unnecessary any discussion of the governing principle to be here applied, that although there have been two verdicts finding for the wife a total divorce on the ground of cruel treatment, that fact alone does not as a matter of law require the jury to make an award of permanent alimony to the wife, but that various other facts and circumstances might properly be taken into consideration, which could justify the jury in withholding such an award, notwithstanding two such verdicts in the wife's favor. In the case cited, the facts of which are fully reported, this court ruled that the judge did not err in refusing to grant the wife a new trial, the ruling being based on the conclusion that the evidence was sufficient to authorize the jury's verdict denying permanent alimony.

The instant suit presents another instance where the wife, having been granted a divorce on the ground of cruel treatment, was refused permanent alimony. By consent of the parties, instead of having the judge to fix the amount of temporary alimony and attorney's fees, the jury were permitted to do this in their final verdict. They awarded the wife one hundred and fifty dollars temporary alimony, and a like amount as attorney's fees. Her petition states that the husband had the custody of the two children at the time the suit was filed; and it appears in the record that at some interlocutory hearing the custody of the children was awarded to the father. Since, in dealing with the evidence after verdict, the question is only whether there is any to support the verdict, the brief of evidence has been examined with that in view. While there was evidence from which the jury could have found that the wife's present possessions were too limited to help her much in making a livelihood, and her prospects of inheritance were uncertain, and that her husband's health was not impaired, and that he owned valuable properties and was amply able to make provision for her support, there was on the other hand evidence to the contrary, so as to present a case for application of the ruling in Simmons v. Simmons, supra. The jury, under the record before us, were empowered to deny permanent alimony to the wife. The special grounds relied on are dealt with in the first headnote, and afford no reason for reversal. It was not erroneous to refuse a new trial.

Judgment affirmed. All the Justices concur, except Hewlett,J., not participating.