dissenting.
I respectfully dissent to Division 1 of the court’s opinion and to the judgment of affirmance in this case. The appellee was denied a divorce from appellant on the ground of cruel treatment by a jury verdict rendered October 16, 1973. Appellee’s motion for a new trial was dismissed on November 26,1973, and there was no appeal therefrom. Prior to the trial of that case in October, there became effective, on July 1, 1973, an additional ground of divorce (Code Ann. § 30-102 (13)) that the marriage is irretrievably broken. Nevertheless, the appellee went to trial in October and asked the jury to grant a divorce only upon the ground of cruel treatment. She lost that case despite the evidence shown at that trial. Instead of seeking a divorce at that time on the additional ground which had become available to her, or of appealing the adverse verdict, the appellee chose to file the present action for divorce on November 27, 1973, on the ground that the marriage was irretrievably broken. In my view, this ground was available to the appellee at the first trial and should have been used unless the evidence in the second case consisted of acts and circumstances occurring since the termination of the first case.
Our Code declares that a judgment of a court of competent jurisdiction shall be conclusive as to all matters put in issue or which under the rules of law might have been put in issue. Code § 110-501. The appellee argues she could not have amended her complaint to add the additional ground that the marriage was irretrievably broken because "[h]er cause of action for divorce arose out of conduct that occurred before she filed her complaint.” I do not believe this is a completely correct statement of the law, but, even if it is accepted as correct, there is no reason why this same "conduct that occurred before she filed her complaint” could not also have been urged as a basis for a divorce on the additional ground. In other words, the prior conduct of appellant, *93which the jury found did not constitute cruel treatment, could have been used at the first trial to prove the marriage was irretrievably broken. This same conduct was shown by the appellee at the second trial and the jury granted a divorce on the ground that the marriage was irretrievably broken. Since this ground could have been urged at the first trial, it was error in my judgment to permit the use of the same evidence at the second trial.
For illustrative cases indicating that it is permissible to add a second ground for divorce by way of amendment, see Phinizy v. Phinizy, 154 Ga. 199 (1 a) (114 SE 185), holding that a petition for divorce on the ground of desertion can be amended by adding cruel treatment as a ground; Newton v. Newton, 196 Ga. 522 (1) (27 SE2d 31), holding that a suit for divorce based on the ground of desertion may be amended by alleging adultery of the defendant occurring prior to the filing of the suit; and Rowell v. Rowell, 209 Ga. 572 (3,4) (74 SE2d 833), holding that it was error to strike an amendment to the defendant’s answer and cross-action in which he sought to allege adultery by his wife occurring subsequent to their separation and the filing of her suit for divorce.
I find nothing inconsistent about seeking a divorce on both the ground of cruel treatment and on the ground the marriage is irretrievably broken. If they are not inconsistent grounds and both were available to the appellee at the first trial, I do not see why the earlier adverse verdict and judgment are not res judicata. This salutary doctrine has been applied down through the years in divorce cases and is applicable to this one. "A party who has once filed a suit for divorce on the ground of cruel treatment, which suit resulted in a verdict and decree adverse to the libellant, is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229 (9 SE2d 70).” Cohen v. Cohen, 194 Ga. 573 (1) (22 SE2d 132). The test is whether the acts relied upon by the plaintiff could have been alleged in the former suit and passed on by the court in that case. If so, the law does not authorize a second adjudication and that is what took place in the present case.
*94Perhaps it can be argued in this case that there was sufficient new evidence of the irretrievably broken marriage to support the present verdict without considering the evidence of acts and circumstances occurring prior to the adjudication in the first case. The problem with this kind of rationalization is that the jury in the second case may or may not have granted the divorce based solely on the new evidence. Since there is no way to measure the impact on the jury of the evidence of the prior conduct, I would reverse and require a new trial where the evidence relating to the irretrievably broken marriage would be limited to the circumstances of the marriage subsequent to the adjudication of the grounds for divorce which were in issue, or could have been put in issue, in the first case.
In my opinion, the appellee in a new trial would have no great burden proving this marriage is irretrievably broken. No proof of fault is necessary and the evidence need only show the condition of the marriage and prospects for reconciliation. See Professor Gozansky’s article, No-Fault Divorce Comes to Georgia? Vol. 10, No. 1, Ga. State B. J., pp. 9-15.
In summary, I cannot agree that a party seeking a divorce on the ground of cruel treatment who loses that case can thereafter file a second complaint for divorce and use the same facts to obtain the divorce on another ground that was available in the first case. Therefore, I dissent to the majority’s decision that a new action is authorized on old facts where there has been an intervening adjudication.