1. The court erred in failing to give in charge to the jury a definition of cruel treatment, as that term is defined in the law.
2. Under the pleadings and evidence, there was no issue as to the husband being the head of the family, and the trial court did not err in failing to charge that principle of law to the jury.
3. The trial court did not err, in the absence of a timely written request therefor, in failing to charge the jury the law as to when permanent alimony shall be granted.
4. Since a new trial is granted for a failure of the court to properly instruct the jury, it becomes unnecessary to pass upon the sufficiency of the evidence to support the verdict.
Runelle Atha filed a suit for permanent alimony and attorney's fees against Stanton Atha in Walton Superior Court, and alleged substantially the following: The petitioner and the defendant were living in a bona fide state of separation. During the time they lived together, the petitioner made the defendant a faithful and affectionate wife and fully discharged her marital duties to him. The defendant abandoned her without any cause or reason on her part and told her to leave their home, and she was driven off from said home by the continuous cruel acts of the defendant. The defendant in his answer denied the allegations as to cruel treatment on his part, and alleged that the petitioner voluntarily and without cause abandoned him and left the home which he had provided for her.
Upon the trial, both sides introduced evidence, and the jury returned a verdict awarding the wife $50 a month alimony until she remarried, $500 to apply on a note signed by her for an automobile that the defendant had previously sold, certain household furnishings, and $50 as attorney's fees. The household goods were awarded to the wife subject to payments to be made by her of the balance due thereon.
The defendant's motion for new trial, which was amended by adding three special grounds complaining that the trial court erred in failing to charge stated principles of law, was denied, and the exception is to that judgment.
1. The first special ground of the amended motion for new trial complains that the court erred in failing to give in charge to the jury any legal definition of cruel treatment, by which they might judge the character of acts that would be sufficient to drive a wife from her husband's home.
2. Under the pleadings and evidence, there was no issue as to the husband being the head of the family, and the trial judge did not err, as complained of in the second special ground of the motion, in failing to charge the jury that the husband in this State is the head of the family, and as such has the right to fix the matrimonial residence without the consent of the wife.
3. The third special ground complains that the court erred in failing to charge the jury on the law as to when permanent alimony shall be granted. The judge instructed the jury: "Under our law alimony is an allowance out of the husband's estate made for the support of the wife when living separate from him. It is the duty of the husband in this State to support his wife, when living together and also when living separately, suitable and according to his ability and condition in life unless the wife has forfeited the claim she has on her husband for support by her own misconduct." If further instructions were desired as to when permanent alimony shall be granted, a timely written request therefor should have been made. This ground of the motion is without merit.
4. Since a new trial is granted on account of the failure of the trial judge to give to the jury any legal definition of cruel treatment, as ruled in division 1 of this opinion, and since the evidence may not be the same on another trial, it is not necessary to pass upon the sufficiency of the evidence to support the verdict.
Judgment reversed. All the Justices concur.