Opinion
14626.
SEPTEMBER 11, 1943.
Divorce. Before Judge Pratt. Barrow superior court. April 27, 1943.
George John L. Westmoreland, for plaintiff in error.
H. W. McLarty and Joe Quillian, contra.
1. Under the law of the case as stated by the rulings on the general demurrer in the divorce action as reported in Cohen v. Cohen, 194 Ga. 573 ( 22 S.E.2d 132), and the supporting evidence introduced on the trial of the case, the verdict in favor of the plaintiff was authorized.
2. The objection that the court erred in rejecting as hearsay, on cross-examination, the proffered testimony of a witness for the plaintiff that the defendant had told her on many occasions that he was still very much in love with his wife, the plaintiff, the contention being that it should have been admitted in rebuttal, because the witness had been asked on direct examination by the plaintiff's counsel whether her relationship with the defendant was a "love affair," is without merit in that the ground of objection does not show that there was any such evidence to rebut.
3. The objection that the court erred in rejecting, as rebuttal and on cross-examination, the testimony of the same witness that the defendant had told her on many occasions that he was not interested in any other girl and was in love with his wife only, it being alleged in the ground of the motion for new trial that "one of the contentions of the plaintiff" was that the defendant and this witness were conducting a love affair, is without merit, in that it does not show that there was any rebuttable evidence of a love affair between such persons, and does not show that the alleged declaration of the husband was made after the acts of cruel treatment on which the wife based her divorce action, or that it was communicated to the wife.
4. While the general rule is that a ground of a motion for new trial must be complete in itself, and a refusal of the judge to allow counsel to ask a witness a certain question on direct examination can not be held error where it does not appear that the expected answer was disclosed to the judge, a different rule applies to questions asked on cross-examination. The plaintiff having testified to impaired health and nervous condition as having been caused by described acts of cruel treatment on the part of the defendant husband since the date of the judgment denying her a divorce on her previous application for divorce on the ground of cruel treatment, the defendant had the right to show, if he could, that previously to the date of the first judgment she was in the same condition and had not recovered therefrom, and thus to make an issue for determination by the jury as to whether or not her condition at the time of the last trial was in fact the result of the alleged cruel treatment inflicted since the date of the former judgment. Accordingly, the court erred in refusing to permit the defendant's counsel to question the plaintiff as to the condition of her health and nervous system previously to the date of the former judgment, as it can not be assumed that, if counsel had shown that her condition was the same as at the time of the former trial, he would not also have attempted to show that she had not recovered from her original disabilities, and to deny the defendant the right to make the first inquiry would be to render impotent and useless all subsequent efforts to make an issue of the kind mentioned.
5. In a suit for divorce based on cruel treatment, if it be shown that both parties have been guilty of like misconduct, no divorce shall be granted. Accordingly, the court erred in refusing to permit the defendant's counsel, on cross-examination of the plaintiff, to inquire whether or not she had been guilty of misconduct like that charged against the defendant.
6. The court erred in refusing to permit the defendant's counsel to ask the plaintiff on cross-examination whether or not the defendant, after the separation of the parties and previously to the date of the judgment in a former divorce action instituted by her, had requested her to return and live with him as his wife.
No. 14626. SEPTEMBER 11, 1943.
Mrs. Evelyn G. Cohen filed a suit against her husband, Jack Cohen, for divorce on the ground of cruel treatment. On May 29, 1941, a verdict against her was returned. On January 27, 1942, she filed a second petition for divorce, which as amended alleged acts of cruel treatment since the date of the previous verdict and judgment, and within a few months previously to the filing of the second action. In Cohen v. Cohen, 194 Ga. 573 (supra), to which reference may be made for a more detailed statement of the pleadings this court affirmed the judgment overruling the defendant's general demurrer. On the trial of the present litigation the jury returned a verdict for the plaintiff. The defendant moved for a new trial on the general grounds and on several special grounds. The exception is to the judgment overruling the motion.
1-3. Headnotes 1, 2, and 3 do not require elaboration.
4. One ground of the motion for new trial complains that the court erred in refusing to permit the defendant's counsel to question the plaintiff as to the condition of her health and nervous system before the date of the judgment denying her a divorce in her original action, it being alleged that the court erroneously ruled that such matter was res judicata by reason of the former judgment, and that, as the plaintiff contended and testified in the present litigation that she was a nervous wreck and her health had been damaged by the acts of cruel treatment alleged in the petition, the defendant had the right to show that the same condition existed previously to the judgment rendered in May, 1941, and thus raise an issue as to whether or not her present condition was in fact the result of the new acts of cruel treatment.
Even if the present suit had involved the same cause of action as that asserted in the former proceeding, which it does not, because the alleged right to a divorce is predicated on acts of cruel treatment different in nature and occurring subsequently to those previously declared upon, the only fact that could be said to have been adjudicated by that judgment is that no act of cruel treatment entitling the plaintiff to a divorce had been shown by the evidence. It could not be determined from that judgment that the jury found that the defendant was guilty of cruel treatment but that his misconduct failed to cause any impairment to her health and nervous system or reasonably put her in apprehension of damage to her health. Neither could it be determined merely from that judgment that, though the jury might have found that she was in a condition of impaired health and nervous system, they found that such condition was not caused by any act of cruel treatment on the part of the husband. As stated above, the only fact determined, in so far as the judgment would show, would be that from the evidence, either lacking in proof of cruel treatment by the husband or in proof of impaired health and nervous system attributable to the misconduct of the husband, the plaintiff was not entitled to a divorce at the time of the rendition of the judgment. Hence, in refusing to permit the defendant's counsel to question the plaintiff as to the condition of her health and nervous system previously to the date of the former judgment, on the ground that such matter was res judicata by reason of such judgment, the judge clearly erred.
The ground of the motion presents a meritorious objection. While the general rule is that a ground of a motion for new trial must be complete in itself, and a refusal to allow counsel to ask a witness a certain question on direct examination can not be held error where it does not appear that the expected answer was disclosed to the judge, in which respect the ground here is wanting, a different rule applies to questions which counsel sought to ask on cross-examination. McKoy v. Enterkin, 181 Ga. 447 (2) ( 182 S.E. 518); Gilpin v. State Highway Board, 39 Ga. App. 238 ( 146 S.E. 651). The distinction is to be found in the fact that on cross-examination counsel can not be expected to announce to the court what answer an adverse witness might make, and he is entitled to thoroughly sift and examine the witness, even though he hazards an unfavorable reply. While it was testified by the plaintiff that her health and nervous system had been impaired by the described acts of cruel treatment on the part of the husband since May, 1941, when a divorce was denied on her original application, the defendant had the right to show, if he could, that previously to such date she was in the same condition and had not recovered therefrom, and thus make an issue whether or not her condition at the time of the last trial was in fact a result of the alleged cruel treatment inflicted since May, 1941, or was in all respects merely a condition which had existed theretofore. If it be said that the ground of objection does not show that the defendant's counsel proposed to go farther and elicit an answer that the plaintiff had not recovered from her previous disabilities, the reply must be that this court can not assume that such additional step would not have been taken. To deny the defendant the right of making the first inquiry would be to render impotent and useless all subsequent efforts to make an issue of the kind mentioned. It has been held: "When the court has erroneously ruled out evidence without which the plaintiff could not possibly recover, his failure to go on and prove other essential facts will not cure the error." Miller v. Speight, 61 Ga. 460 (3); Georgia Iron Co. v. Ocean Accident Cor., 133 Ga. 326, 331 (2) ( 65 S.E. 775). As picturesquely stated by Judge Bleckley in the Miller case, supra, "With a mortal wound in the vitals of their case, inflicted by an erroneous ruling of the court, there was nothing which they could do for it that would save it from expiring before their eyes. To support its extremities when it was doomed at the center was useless for any purpose except to render it a more impressive corpse." That principle is applicable here. The right to raise an issue by first asking the question proposed was vital to the defendant's defense. The denial of this right requires a reversal of the judgment.
5. Another ground complains that the court erred in refusing to permit the defendant's counsel, on cross-examination of the plaintiff, to show that she had been guilty of conduct like that charged against the defendant; it being alleged in this ground that the court held such matter res judicata by reason of the former judgment. For reasons stated in the preceding division of this opinion, the matter was not res judicata. The ground presents a meritorious objection. In a suit for divorce based on cruel treatment, if it be shown that both parties have been guilty of like misconduct, no divorce shall be granted. Code, § 30-109. The denial of the right to the defendant to cross-examine the plaintiff as complained of was harmful error.
6. Another ground assigns error on the refusal of the court to allow the defendant to prove by the plaintiff that after the separation of the parties, and previously to the judgment in the former divorce action, the defendant had requested the plaintiff to return and live with him as his wife; it being contended that the defendant was thereby prejudiced and deprived of a legal right. By the judgment in the former proceeding it was determined that the plaintiff was not entitled to a divorce. Nevertheless she wrongfully continued to remain apart from her husband, which conduct might reasonably be said to have provoked the acts of the defendant of which she complains in the present suit, which was filed subsequently to the former judgment, and in which she testified to humiliation and impairment to her health and nervous system; and if her conduct did induce such acts on the part of the husband, she would not be entitled to a divorce. Her refusal to comply with a request of the husband, if made, that she rejoin him and live with him as his wife, would be material evidence for the consideration of the jury as to her credibility on the question of her alleged humiliation and impairment to health and nervous system, as detailed by her unsupported testimony. It follows that the court erred in refusing the defendant's counsel the right to attempt to elicit the admission from the plaintiff.
Judgment reversed. All the Justices concur.