1. Grоund 1 of the amended motion for new trial assigns as error the refusal of the court to admit in evidence a former decree of divorce between the parties, wherein the wife was awarded permanent alimony in the sum of $125 per month. In paragraph 3 of the petition it was alleged that the parties had been previously married and divorced. In paragraph 13 of her answer the defendant alleged that, in the former divorce action, she wаs awarded alimony in the sum stated; that the plain
Facts or circumstances serving to elucidate or throw light upon the issue being tried constitute proper еvidence in the case. Georgia Savings Bank & Trust Co. v. Marshall, 207 Ga. 314 (
2. Ground 2 of the amended motion for new trial аssigns error on the following extract from the charge of the court: “Gentlemen, I charge you that counsel by agreement permitted the defendant’s counsel to assume the burden of proof in this case and to submit her evidence first, and -that that would authorize Mr. Burnside, the defendant’s lawyer, to have the opening and concluding argument in this case. . . Gentlemen, I charge you that by admitting what we call in law a prima facie case, then the burden of proof was on Mr. Burnside, the counsel for the defendant in the case, Mrs. Shivers, to carry the burden of proof, because in law he had to admit a prima facie сase, as we call it in law, before he would be entitled to the opening and conclusion because ordinarily the burden of proof is on the plаintiff. As I said, by agreement between themselves, which the court approved, Mr. Burnside assumed the burden of proof, and that made out a prima facie case for the plaintiff. Now!; prima facie case, gentlemen, is a Latin term that we lawyers use and I suppose that there are some of you whо will not understand exactly what it means. It means just simply this:
Generally, the admission by the defendant of -a prima facie case for the plaintiff relieves the plaintiff of establishing his contentions by a preponderance of the evidence. Richter v. Kilpatrick, 143 Ga. 470 (
The trial judge subsequently charged that it would be necessary for the plaintiff to prove by a preponderance of the evidence one of his grounds for divorce before he would be entitled thereto. The trial judge did not, however, correct'the previous errоneous charge or withdraw it from consideration by the jury. “The jury can not be expected to select one part of a charge to the exclusion of another, nor to determine whether one part cures a previous error, without having their attention specially called thereto, and being instructed accordingly.” Gill v. Willingham, 156. Ga. 728 (4) (
3. In ground 3 error is assigned on the following charge: “Now, the defendant, on -the other hand, gentlemen, is not contending for a divorcе. She is contending for alimony on the ground, and I believe she had two grounds, too. She claims that her husband abandoned her, and she alleges that in her counterclaim, and she contends under the evidence that she is entitled to a divorce on the ground that her husband deserted her at a certain time and datе, and the law requires that desertion shall continue for a period; and that is one of the grounds of divorce that I didn’t read to you. I will go back and read it tо you. ‘Wilful and continued desertion by either of the parties for the term of one year.’ Bo, before you would be authorized to find that Mrs. Shivers was entitled to alimony in this case, you would have to find that he deserted her, and you would have to find that by a preponderance of the evidence . . .”
4. In ground 4 error is assigned on the following charge: “So, if you should find: ‘We, the jury, find in favor of the plaintiffs’, that would mean just this: That the plaintiff is entitled to a divorce and that he is entitled to a permanent injunction against his wife enjoining her from ever entering on these premises again, ■and that his wife would not be entitled to any alimony.”
The trial judge did not elsewhere in his charge instruct the jury as to the form of their verdict should they grant the plaintiff a divorce, and in doing so grant to the defendant alimony in such amount as the jury might determine to be proper under the evidence.
“Under the statutes of this State, when a husband obtains a divorce from his wife upon the ground of cruel treatment, it is for the jury to say whether they will allow the divorced wife permanent alimony.” Lowry v. Lowry, 170 Ga. 349, 351 (
5. In ground 5 error is assigned on an extract from the charge pertaining to “the fears of a reasonable person.” The “fears of
The general grounds of the motion for new trial were specifically abandoned.
■Judgment reversed.