
    19376.
    Davenport v. Davenport.
    Argued June 12, 1956
    Decided July 10, 1956
    Rehearing denied July 24, 1956.
    
      Chas. W. Anderson, Oze R. Horton, for plaintiff in error.
    
      Henry A. Stewart, Cecil D. Franklin, contra.
   Wyatt, Presiding Justice.

Mrs. Elizabeth Davenport brought suit in two counts against William Davenport, seeking permanent alimony. Count one of the petition alleged that the parties were living in a state of voluntary separation. Count two of the petition alleged that the petitioner was living separate from the defendant because of his cruel treatment, which drove her from him in fear of bodily harm. Upon the trial of the case, the petitioner expressly and in open court abandoned count two of the petition, leaving only count one, which alleged a voluntary separation. No evidence was introduced at the trial by the petitioner which showed that the separation was a voluntary one. The petitioner testified that she separated from the defendant because of his cruel treatment and testified as to the acts alleged to constitute the cruel treatment. When the plaintiff closed her case, the defendant moved for a nonsuit, which was granted. The exception here is to that judgment. Held:

Where, as here, the proof upon the trial of the case does not conform to the pleadings, it is not error to grant a motion for nonsuit. See Tarvin v. Rome Cooperage Co., 143 Ga. 596 (85 S. E. 755); Sackett v. Tucker, 18 Ga. 401. In the instant case, the proof of the plaintiff wholly failed to prove the case as laid in the petition, and it was not, therefore, error to grant the motion for nonsuit.

Judgment affirmed.

All the Justices concur.  