1. It is reversible error to charge a jury in a divorce case that, if the jury grants one party a divorce as a matter of law, the opposite party should also be granted a divorce. While some lower courts seemingly have misconstrued the 1960 amendment to
Code Ann.
§ 30-122 (Ga. L. 1960, pp. 1024, 1025), “rights and disabilities” and “divorce” are not synonymous terms. See
Moon v. Moon,
2. While the defendant prayed for a divorce and merely denied the cruel treatment alleged to have been committed by him, yet his evidence of cruel treatment, unexcepted to, amounted
*28
to an amendment setting out cruel treatment as his ground for divorce; and it was erroneous for the court to instinct the jury that the defendant was not asking for a divorce. The court having failed to understand the issues, before it, and the charge having failed to correctly state the contentions of the parties, it was reversible error to charge as above, and the special ground complaining of this excerpt from the charge is also meritorious. See
Whelchel v. Gainesville & Dahlonega Elec. R. Co.,
116 Ga, 431 (3) (
3. The verdict of the jury granting a divorce to both parties, while authorized by the charge which is criticized above, is inconsistent, since the parties charge each other with like conduct of cruelty by mistreatment, and both offered evidence to sustain these contentions.
Code
§ 30-109;
Brackett v. Brackett,
Judgment reversed.