183 Ga. 860 | Ga. | 1937
Mrs. Lula Bert Brock filed suit against William O. Brock for a divorce, alimony, custody of their minor child, and fees, alleging that the defendant had been guilty of cruel 'treatment of her, cursing, striking, and abusing her in the presence of this child and of the plaintiff’s child (a little girl) by a former marriage, all of which caused the plaintiff to lose her love and respect for defendant, greatly impaired her health, made life with the defendant unbearable, and caused their separation; that the plaintiff had the custody and care' of these children; that the defendant had refused to carry out an agreement to adopt the child of the previous marriage; that he was an able-bodied man earning $300 a month with a telephone company; that he owned certain described improved realty in Atlanta; that he owned also a large number of shares of stock in the American Telephone and Telegraph Company, and other properties and assets unknown to the plaintiff; that; at the time of her marriage to defendant she had a separate estate of $5,000 in cash; and that he had persuaded her against her will to lend this money to him, and had failed ..and refused to repay her. The defendant denied that he was guilty
The trial now under review was the second and final hearing. The plaintiff introduced evidence in support of the allegations of her petition, and in denial of defendant’s cross-action. There was evidence as to .plaintiff’s separate estate, including money and thirteen shares of telephone stock, which the defendant had used with some money belonging to plaintiff’s little girl, that he had not repaid the money, that the purchase-price of the realty owned by him was $6750, and that the plaintiff is not physically able to work, and has no income except what the defendant has been pay
1. The evidence authorized the second concurring verdict. The general grounds of the motion for new trial present no error.See Code, §§ 30-101, 30-104, 30-106, 30-115, 30-122. '
2. The contention of the plaintiff that the amount of the verdict was inadequate, because the undisputed evidence disclosed that the defendant was earning $275 a month, that before the separation he furnished to the plaintiff a house and gave her a monthly allowance of $100 in addition to paying the monthly light and gas bills, that she had left no separate estate and no earning capacity, and that $25 a month for one year as permanent alimony was inadequate and insufficient to support her in the manner in which she had been living for many years, and was inconsistent with the defendant’s ability. Where the wife’s conduct is such
3. The court charged the jury that “if the separation in this ease was caused by the-misconduct of the husband, as alleged in the plaintiffs petition, then you would be authorized to grant the plaintiff such amount as alimony as would be justified by the evidence, consistent with the ability of the husband and their condition in life.” The plaintiff assigns error on this charge, contending that it in effect instructed the jury that the grant of alimony in a ease where the separation was caused by the misconduct of the husband was discretionary, whereas under the law the wife in such a case is entitled to alimony and support as a matter of right; that the court should have instructed the jury that in such a case it was their duty to fix such an amount as alimony as would be consistent with the ability of the husband to pay and the condition in life, instead of instructing them that they would be authorized so to do; that said charge was misleading, in that the jury evidently believed that they had the right to render a verdict in the plaintiff’s favor and to refuse any alimony, as the grant of $25 per month for twelve months was virtually a finding that she was entitled to a divorce because of the misconduct of the husband, and at the same time a refusal to give the plaintiff any support or alimony. "While this charge may have been incorrect under the principle ruled in Campbell v. Campbell, 90 Ga. 687 (16 S. E. 960), and Wilkes v. Wilkes, 157 Ga. 841 (122 S. E. 548), it appears that the jury did render a verdict awarding permanent alimony to the wife, and did so under correct instructions by the court as to the basis for determining the amount. It follows that the charge, if erroneous, was harmless to the plaintiff. The judge did not err in overruling the motion for new trial.
Judgment affirmed.