Hubbell v. Hubbell

COOPER, P. J.

This action was brought to procure a divorce on the ground of extreme cruelty. After a trial lasting three days, the court filed its findings and conclusions of law, upon which judgment was entered for plaintiff aa

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prayed. This appeal is from the judgment and the order denying defendant’s motion for a new trial. No question is raised as to the sufficiency of the evidence to justify the findings, nor is there any question to the property rights or the custody of children.

The principal point relied upon by appellant is the contention that the complaint does not state facts sufficient to constitute a cause of action. It is claimed that the complaint does not state with sufficient particularity and certainty the facts relied upon as constituting extreme cruelty. The complaint alleges as follows:

“That since their intermarriage, defendant has inflicted upon plaintiff grievous bodily injury and grievous mental suffering, and more particularly as follows:

“That continuously during the five years last past and immediately next preceding the commencement of this action defendant has exercised and maintained over plaintiff and his affairs an unreasonable espionage, and has manifested an improper, unreasonable and unnecessary jealousy of and concerning plaintiff, and has repeatedly made to plaintiff false accusations of infidelity, well knowing her charges to be false, and has spied upon him in an offensive manner, and pried into his private affairs, and" has taken possession of letters addressed to him by patients, opened the same, read them and refused to surrender them to. plaintiff,. who was during all of said times and now is a physician and surgeon engaged in the practice of his profession in the city and county of San Francisco.

“That on the 14th day of July, 1904, at the residence of plaintiff and defendant in the City and County of San Francisco, defendant instigated one Hinckley, her son in law," to make a violent personal assault upon plaintiff, as a result of which plaintiff sustained serious personal injury.”

The defendant demurred to the complaint upon the general ground that it does not state facts sufficient to constitute a cause of action, and upon the special ground that it is uncertain in this, “that it does not appear therefrom how the plaintiff sustained any serious personal injury from an assault.” The demurrer also alleged that the complaint is ambiguous for the reason last stated, and further that it is unintelligible for the same reason.