Nelson v. Nelson
Before: Burnett
Synopsis
Action fob Divorce by Husband — Cross-complaint by Wife — Extreme Cruelty — Element of Wrongfulness Essential — Necessary Implication Sufficient.—While, in a cross-complaint by the wife, in an action for a divorce by the husband, seeking a divorce from him on the ground of his extreme cruelty, the element of wrongfulness involved in the definition of “extreme cruelty ” set forth in section 94 of the Civil Code must appear from its allegations, yet the cross-complainant is not required to adopt the precise language of the statute; but it is sufficient that the only rational inference from the acts of extreme cruelty specified and described in the cross-complaint involves the necessary implication of injustice or wrongfulness on the part of the plaintiff.
Id—Sufficiency of Cross-complaint—Showing of “Grievous Physical and Mental Suffering.”—Where the cross-complaint alleges that the plaintiff had treated the defendant “with extreme cruelty,” which is followed by a specification of acts which necessarily imply unlawfulness, cruelty and brutality, and culminates in the positive averment that by reason of those acts specified the defendant and cross-complainant has suffered and does suffer great and grievous physical and mental suffering, it presents a clear ease of the “wrongful infliction of grievous bodily injury and grievous mental suffering,” within the meaning of section 94 of the Civil Code.
Id.—Findings — Statutory Requirement — Judgment for Cross-complainant Unsupported by General Findings.—To satisfy the requirement of the law as to findings under a charge of extreme cruelty, there must be found at least some of the acts of cruelty specifically charged and embraced within the evidence, and also that these acts wrongfully inflicted upon the complainant grievous bodily injury or grievous mental suffering; and where the findings for the eross-eomplainant are merely of a vague and general character, without specifying acts of extreme cruelty alleged and proved, they are insufficient to support a judgment for the cross-complainant.
Id.—Allegations of Cross-complaint not Admitted bt Failure to Answer.—None of the allegations of the cross-complaint for a divorce by the wife against the husband, constituting the grounds and conditions of divorce, are admitted by the failure of the husband to answer the same; but they must be substantially proved and found. A cause of action for a divorce must always be proved and found, and cannot' be taken by default or admission. It constitutes a statutory exception, under section 130 of the Civil Code, to the general rule that facts not denied need not be found.
BURNETT, J.
This is an appeal by plaintiff from an interlocutory judgment of divorce awarded defendant upon her cross-complaint. Appellant declares that “Whether the cross-complaint herein states a cause of action, or whether the findings made upon it support the judgment for the defendant, are the two principal points made by appellant on this appeal.” The alleged insufficiency of said cross-complaint is predicated of the failure to aver that the acts of cruelty set out
wrongfully
inflicted upon defendant
grievous
mental suffering, and the findings are assailed for a similar omission.
Of these, in the order presented by appellant in his brief. Section 94 of the Civil Code defines “extreme cruelty” as being the “wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage.” Appellant is, therefore, right in his contention that the element of
wrongfulness
must appear in the complaint. It would, of course, be unreasonable to hold that every infliction of grievous bodily injury or mental suffering should be a sufficient ground for divorce. Such injury or suffering might result from the inadvertent or justifiable con
[604]
duct of the other party to the marital relation. The law does not, manifestly, contemplate such a contingency but properly demands that the deprecated act be wrongful. We do not understand, however, that the pleader is required to adopt the exact language of the statute. It is sufficient if, by appropriate averments, the said qualification appears. Here, we think, the only rational inference from the allegations of the cross-complaint is that the “infliction” was “wrongful.” The acts of extreme cruelty are specified, and they are described in such terms as to carry necessarily the implication of
injustice
or
wrongfulness
on the part of plaintiff. For instance, it is averred that, on one occasion, plaintiff said to defendant, “Get supper early and we will go to the dance to-night”; that defendant went home and, after doing her housework, got ready to go to the dance, and when she started to go he seized her violently by the arm and, in an angry voice, uttered an oath and said to her, “You’re not going to take that baby out,” and shoved her back into the house and seized her by the throat and choked her until their little son struck him, when he desisted, and, at the same time, he accused her of wanting to go to the dance to meet one Bishop. It is further alleged that plaintiff, while away from home, on two separate occasions, contracted a venereal disease for which he was under the care of a physician for many months, and that he falsely accused defendant of having given him said disease; “that in the month of June, 1910, the plaintiff told the defendant that someone had placed a deer hide in his barn and then and there said to defendant, ‘Damn you, you know more about this deer business than you have told; I will shoot Bishop and you too’ ”; that the charges of adultery made in plaintiff’s complaint are without foundation, and were made by said plaintiff for the purpose of injuring the good name of defendant with her neighbors and friends, and that in his complaint he “has falsely and willfully charged this, defendant with the crime of conspiracy committed with one Martin Bishop against the said plaintiff, which said accusation is false and untrue, and was made by the said plaintiff for the purpose of humiliating and injuring the good name and reputation of this defendant with the general public and with her friends and neighbors.” It seems to us apparent that the addition of the qualifying word “wrongfully” is not required
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