ing, no matter how great; whilst in other cases, where the mind is less sensitive the body may be so weak as to yield to comparatively trifling mental suffering. If divorces are granted to prevent or relieve suffering, and not simply to preserve life, it is difficult to assign a satisfactory reason why bodily suffering should be relieved, and not the mental. Indeed, in the large majority of cases of personal violence, the wounded pride, the consciousness of lost affection, and the indignity endured, cause keener suffering than the wounded flesh or broken limb. The difficulty, however, lies in the proof. Where the mental suffering has produced no visible effect upon the bodily health or appearance, the tangible standard by which its extent may be measured, whether with accuracy or not, is wanting, and we are left to the recital of suffering by the aggrieved party, and inference as to the probable effect of the aggressor's treatment. From the very nature of the case the testimony of third persons to the mental sufferings of a complainant can rarely, if ever, present to the court a just conception of it. In the case of Matthai v. Matthai, 49 Cal. 93, the district judge, in passing on a motion for new trial, said: "While upon paper it may not appear that plaintiff had any great reason to complain on the score of mental anguish, yet the appearance of the parties in court, in connection with the evidence offered, entirely satisfied my mind that she was a keen sufferer by reason of the premediated, persistent, and willful system of persecution and annoyance adopted by the defendant towards her; * that his language to and treatment of her not only caused her mental, but also physical suffering, and that to remand her to his control and companionship would be virtually consigning her to a premature death or to insanity." In the same case the Supreme Court say: "The voluminous record sent up is full of the details of the most disgusting and outrageous conduct of the defendant towards the plaintiff; and if the evidence tending to show these is to be believed, it would be a reproach to the law should relief be denied to the plaintiff." The effect of this conduct upon the plaintiff was not discussed by the Supreme Court.

*

In Powelson v. Powelson, 22 Cal. 358, Cope, C. J., said: "It appears that the defendant was in the habit of using towards the plaintiff the vilest and most abusive language, falsely charging her with adulterous intercourse; that she is a weak, nervous woman, modest in her deportment, and amiable in her disposi

tion; that the conduct of the defendant caused her much mental suffering, producing fits of illness, and threatening permanent injury to her health, rendering a separation from him necessary." In the same case it was further said: "Cruelty, as defined by Bishop, is such conduct in one of the married parties as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable apprehension of bodily harm as naturally interferes with the discharge of marital duties. This definition falls strictly within the doctrine of the cases, and in Morris v. Morris, 14 Cal. 76, we adopted it as expressing substantially the meaning of our statute. seems to be settled that, in order to justify a divorce, the harm to be avoided must be bodily harm, and not merely mental, and some of the authorities go so far as to hold that mental suffering, though affecting the health and endangering the physical safety, is not sufficient. The better opinion, however, is opposed to this view, and we think that any conduct sufficiently aggravated to produce ill-health or bodily pain, though operating primarily upon the mind only, should be regarded as legal cruelty."110 The definition given by the Civil Code, above cited, has been since adopted. In Illinois it was held that, although abusive language is not, by itself, cause for divorce, yet where blows are proved, abusive language may be taken into view as determining their character as constituting cruelty, such as warrants a divorce.111 A gross abuse of marital rights by the husband, resulting in injury or suffering to the wife, may constitute extreme cruelty within the meaning of the statute of New Jersey, allowing divorces a mensa et thoro upon that ground.112 Where there is no reasonable apprehension of a continuance of cruelty, the divorce will be denied.113 As to cruelty by violence, the kind of violence is not material. In this respect there is no difference between a blow, a push, or any

110 See, also, Fleming v. Fleming, 95 Cal. 430; 29 Am. St. Rep. 124; Waldron v. Waldron, 85 Cal. 251; Mason v. Mason, 131 Penn. St. 161; Beyer v. Beyer, 50 Wis. 254; 34 Am. Rep. 848; Kelly v. Kelly, 18 Nev. 49; 51 Am. Rep. 732, in which false accusations of marital infidelity on the part of the husband, made by the wife, were held extreme cruelty.

111 Farnham v. Farnham, 73 Ill. 497; S. P., Day v. Day, 56 N. H. 316.

112 English v. English, 27 N. J. Eq. 579; Mayhew v. Mayhew, 61 Conn. 233; 29 Am. Rep. 195.

113 English v. English, 27 N. J. Eq. 579.

other force.114 For a husband to confine his wife; or to starve her; or, having the means to procure them, deprive her of the necessaries of life; or withhold medical assistance in sickness, while he is able to provide it; the ill-treatment of his wife's child, if for the purpose of annoying her; desertion; refusing marital connection, have all been held to be cruelty.115 A bill for divorce which, in stating a case for divorce on the ground of adultery, avers the contracting by defendant of a venereal disease, will authorize a decree on the ground of extreme cruelty, where the proof clearly substantiates the fact so averred.118 In Iowa, the cruel treatment must be such as to endanger life, and the complaint must state the specific acts of inhuman treatment.117 Where a husband, in presence of his wife, in spite of her entreaties, unmercifully beats her child, it is cruel and inhuman treatment.118 But demeanor calculated to provoke annoyance, discontent, and disgust is not sufficient.119 And divorces are granted in such cases to relieve from apprehended danger of bodily harm.120 But not when such cruelty is caused by the misconduct of the wife.121 The acts or character of treatment which will amount to extreme cruelty, sufficient to constitute a ground of divorce, must in a great measure depend on the character of the respective parties and the peculiar circumstances of each case.122 Under the California statute, adultery or habitual intemperance do not, in a legal sense, constitute extreme cruelty.1 Nor does the fact that the 114 Dysart v. Dysart, 1 Robertson, 106, 125; Saunders v. Saunders, id. 549, 560.

123

115 See Bishop on Mar. & Div., 5th ed., vol. 1, § 735 et seq., and cases cited. As to the amount of cruelty, or the extent of danger, see Barrere v. Barrere, 4 Johns. Ch. 187; Mason v. Mason, 1 Edw. Ch. 278; Richards v. Richards, 1 Grant (Penn.), 489; Mahone v. Mahone, 19 Cal. 626, 628; 81 Am. Dec. 91; Graecen v. Graecen, 1 Green Ch. 459; McMahon v. McMahon, 9 Oreg. 525; Albert v. Albert, 5 Mont. 577; Carpenter v. Carpenter, 30 Kan. 712; 46 Am. Rep. 108.

116 Canfield v. Canfield, 34 Mich. 519; Collett v. Collett, 1 Curt. Ecc. 678; Long v. Long, 2 Hawks, 189.

117 Freerking v. Freerking, 19 Iowa, 33.

118 Bihin v. Bihin, 17 Abb. Pr. 19.

119 Conklin v. Conklin, 17 Abb. Pr. 20, note.

120 Morris v. Morris, 14 Cal. 76; 73 Am. Dec. 615.

121 Johnson v. Johnson, 14 Cal. 459.

122 Reed v. Reed, 4 Nev. 395.

123 Haskell v. Haskell, 54 Cal. 262; also, Shutt v. Shutt, 71 Md. 193; 17 Am. St. Rep. 519.

husband deserted the wife for three months, during which time he remained in Europe to perfect himself in painting. The specific acts which constitute the cruel treatment must be stated.125

§ 2693. Common property. Where the decree of divorce, for extreme cruelty, in an action in which there was no averment in the pleadings as to the common property, awarded it all to the plaintiff, it was held that, in so far as it purported to nake disposition of or direction concerning such property, it should be reversed, and the cause remanded for amendment of the pleadings and for further proceedings.126 There is no doubt that the court, in granting a divorce, has authority to direct the defendant to pay the plaintiff alimony, and the allowance may be based upon his earnings, or his ability to earn money.1

127

§ 2694. Condonation. An offer by a wife to return to her husband and live with him, made pursuant to an order of court for her support, in lieu of an allowance, is not a condonation of his previous cruel treatment. 128

§ 2695. Provocation of violence. A divorce will not be granted on the ground of extreme cruelty, when it appears that the complaining party has willfully provoked the violence or misconduct complained of, unless such violence greatly exceeds the provocation.129 Where the conduct of the plaintiff was not free from fault, but it was not of such a character as to excuse defendant's acts of personal violence, the court is authorized to grant a divorce.130

§ 2696. Single act of violence. A mere act of violence, where there is no apprehension of its repetition, and which is the result of rashness rather than malignity, does not furnish a ground of divorce on the ground of extreme cruelty, because

124 Smith v. Smith, 62 Cal. 466.

125 Anonymous, 11 Abb. Pr. 231; S. C., sub nom. Walton v. Walton, 32 Barb. 203; and see Smith v. Smith, 62 Cal. 466.

126 Howe v. Howe, 4 Nev. 469; see Cal. Civil Code, § 146.

127 Bishop on Mar. & Div., § 604.

128 Retz v. Retz, 19 Abb. Pr. 90.

129 Reed v. Reed, 4 Nev. 395.

130 Eidenmuller v. Eidenmuller, 37 Cal. 364; see, also, Albert v. Albert, 5 Mont. 577; 51 Am. Rep. 86; Hawkins v. Hawkins, 65 Md. 104.

this relief is not granted to punish the party guilty of misconduct, but relieve the other party from future suffering or violence.13

131

....

18..,

II. [Allege residence as in form No. 615.] III. That from the ........ day of they continued to live and cohabit together as man and wife, in this state, till 18.., during which time they had born unto them one child, a son (now under plaintiff's carc), and by their united exertions acquired property of the value of twenty thousand dollars, which property consists of money, stocks, notes, and other personal securities, now entirely in the hands and under control of the defendant; that in the month of ...... 18.., defendant, without cause or provocation, drove plaintiff from his house, and ever since has and still does refuse to live or cohabit with plaintiff, allow her to return to his house or to speak to him; and since the separation as aforesaid, the defendant has supplied her with seventy-five dollars per month for the maintenance of herself and child, but threatens to reduce or wholly deprive her of this allowance at his pleasure; that she has no separate property.

Wherefore plaintiff prays permanent alimony in the sum of

.... dollars per month, to be paid and secured to her for the separate maintenance of herself and child, and that the custody of said child be awarded to her.132

§ 2698. Alimony without divorce. It was decided that a wife, who without cause or provocation is driven from her husband's house, with her infant child, and is wholly without the means of support, may maintain an action against the husband for a reasonable allowance, for the maintenance of herself and child, without coupling with the application a prayer for a divorce.133 "The doctrine extends through the entire field of our law, as administered alike in the common law, equity, and

131 Reed v. Reed, 4 Nev. 395; Hoshall v. Hoshall, 51 Md. 72; 34 Am. Rep. 298.

132 This was substantially the form of complaint in Galland v. Galland, 38 Cal. 265.

133 Galland v. Galland, 38 Cal. 265.