Sallee v. Sallee

CRAIG, J.

This is an action for divorce, and the appeal is from an interlocutory decree rendered in favor of the plaintiff.

The complaint contains four alleged causes of action, but they repeatedly cover the same ground, and, if at all, justify a decree in favor of the plaintiff upon but two theories. These are, extreme cruelty under section 94 of the Civil Code, or desertion under section 98 of the Civil Code.

The cruelty charged is purely mental in character, and consists of accusations made by the defendant to the plaintiff directly, and to a third person, charging him with improper attentions to other women. The complaint includes much redundant matter. The material incidents related are but two—the first occurring on the 25th and 26th of February, 1915, and the second on April 22, 1921; but in the last analysis the plaintiff’s right of action depends upon what took place on the first of these occasions. Concerning this, the complaint alleges that on the twenty-fifth day of .February, 1915, the defendant accused the plaintiff of “fooling around with other women,” that she persisted in this until the plaintiff finally “went to sleep .with his wife still talking about ‘other women. ’ ” It is stated that on the morning of the 26th Mrs. Sallee resumed the talk about other women, and again charged him with “running around with

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them.” He thereupon got Ms effects together, and left the defendant’s bed and board in the family residence. The court finds that: “On February 26, 1915, nor at any other time did plaintiff leave the bed and board of defendant by reason of her extreme cruelty practiced upon him, but that on said day the plaintiff did depart from the bed and board and family residence of the parties hereto by reason of the following stated facts, to wit.”

The finding then goes on to cover the facts which we have related above, and concludes that the plaintiff was justified in leaving the defendant “by reason of the fact that the language used to him by the defendant was cruel.” It may be said here that on account of the finding first quoted that the plaintiff did not leave the defendant by reason of her extreme cruelty practiced upon him, the issue is narrowed down to one of desertion based upon cruelty under Civil Code, section 98. Appellant argues that the finding that plaintiff did not leave the defendant because of her extreme cruelty practiced upon him is inconsistent with the other findings to the effect that the defendant was guilty of cruelty and that the plaintiff departed from the family residence on account of it. While proof of extreme cruelty, as defined in section 94 of the Civil Code, is not necessarily the same as cruelty sufficient to justify the spouse upon which it is practiced leaving the one practicing it