Glass v. Wynn

76 Ga. 319 | Ga. | 1886

Jackson, Chief Justice.

The court granted alimony to the wife in this case, the judge sitting at chambers, under section 1747 of the Code. The wife, with one child, was living separately from the husband, and the judge gave her $20.00 per month for herself and child, and seventy-five dollars for fees of counsel.

1. The evidence is distressingly conflicting in respect to the party whose fault caused the separation, but this court defers to the judgment of the court below thereon, it being of opinion that there is evidence enough to sustain the judgment against any idea that he abused his discretion; and so in respect to the treatment of the wife by the hus.b'and the testimony conflicts, and we must adjudicate all these decisions on facts where they are thus uncertain in the same way.

2. The act of 1870, codified in section 1747, declares that this procedure may be had “when husband and wife are living separately, or are bona fide in a state of separation,” at the instance of the wife, there being no action for divorce pending. Well, in this case they were so living separately. and were bona fide in that state, and there was no divorce pending: and, in our judgment, it is immaterial what brought this separation about. The fact of the separation existed, and there is no hint that it was not genuine or bona fide, there being no hint that they cohabited or in any sense acted as husband and wife after the separation. We do not see that Hawes vs. Hawes conflicts with this view of the section; if so, the remark is obiter. See that case, 66 Ga., 142.

3. Even if there must be cruel treatment or voluntary separation in order that this proceeding may be had, we think in such a case cruel treatment may exist from conduct other than blows. Mental anguish, wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises of the person; and that which produces the one is not more cruel than that which causes the other. See Myrick vs. Myrick, 67 Ga., 771, 776, 777-8-9 et seq.

Judgment affirmed.