
    Parker v. Parker.
    April 13, 1910.
    Alimony. Before Judge Bawlings. Jefferson superior court.
    May 13, 1909.
    
      B. F. Walker and Cain & Hardeman, for plaintiff in error.
    
      H. C. Roney and Phillips & Phillips, contra.
   Holden, J.

1. Upon tlie trial of an action brought by the wife against the husband' for permanent alimony, it is not error to refuse a timely-written request of the defendant to charge the jury as follows: “If you believe from the evidence in this case that Mrs. Parker left her husband and that she left without cause, then I charge you that you would not be authorized to find any alimony for plaintiff. When I say and use in this connection the word ‘cause,’ I mean some unlawful act or unlawful doing.”

(a) A wife is not barred of her right to alimony simply because the conduct of the husband causing her to refuse to live with him did not consist of acts which were unlawful.

2. Where the wife brought suit against the husband for permanent alimony, alleging that he “has abandoned petitioner against her will,” it appearing upon the trial that the husband alone removed to the place at which he and his wife formerly resided, and there being evidence to show that she, at the time of the husband’s removal, was afflicted with an incurable disease, and that at the time her health was and ever since has been such that, for specified reasons, she could not live at such place, it was not error upon such trial to refuse a timely written request of the defendant to charge the jury that the plaintiff could not recover if the husband endeavored to get his wife to remove to such place and she was physically able to do so, but refused, or if she was not at the time physically able to so remove, but afterwards became so and refused to remove to such place and reside with the husband and he was at all times willing to “receive her in his home.”

3. The evidence supported the verdict, and there was no error in refuging a new trial. Judgment affirmed.

All the Juslices concur.  