
    Fain v. Fain.
    No. 6825.
    May 17, 1929.
   Beck, P. J.

1. This was a suit for divorce, brought by the husband, upon the alleged ground of cruel treatment by the wife, and the evidence related to the ground mentioned. In his instructions to the jury the court charged them in part as follows: “If adultery, desertion, cruel treatment, or intoxication complained of shall have been occasioned by collusion of the parties or with the intention to cause a divorce, or if the party complaining has assented thereto, or if both parties have been guilty of like conduct, or if there has been a voluntary condonation and cohabitation subsequent to the act complained of and with notice thereof, then no divorce shall be granted.” The language quoted is contained in section 2948 of the Civil Code, which was read in full to the jury. While the plaintiff’s case was based entirely upon the ground of cruel treatment, and there was no allegation of desertion or adultery by either of the parties, and no evidence in regard to such grounds, and while the charge in reference to the subjects of desertion and adultery was inappropriate, the mere reading in full of section 2948 of the Code, relating to condonation, collusion, etc., did not require the grant of a new trial. '

2. It does not appear that the statement of the contentions of the plaintiff and the defendant was not sufficient. If the plaintiff desired fuller instruction upon the contentions, he should have requested it.

3. The evidence in the case was sufficient to support the verdict for the defendant, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concur.

Audley M. Lane, for plaintiff.

Augustine Sams and C. Holland Feagan, for defendant.  