Franklin v. Franklin

HENSHAW, J,

This is an action wherein plaintiff seeks

divorce from defendant upon the ground of his alleged cruelty. The specific allegations are, that shortly after their marriage, and for a period of nearly ten years, defendant was abusive to plaintiff, neglected her, failed to provide for her, and compelled her to perform hard and unaccustomed labor to sup

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port herself and. her minor children, while he spent his time in idleness and dissipation. The defendant repeatedly returned home drunk, and would apply vulgar and abusive epithets to plaintiff in the presence of her children, would threaten to strike her, and on one occasion did strike and beat her violently, at the same time cursing her and calling her vile names; that upon one night during this period the defendant returned to his home drunk, and, becoming irritated at the infant son of plaintiff and defendant, caught up a teakettle from the stove and threw it at the child, narrowly missing him; that the defendant then in his rage overturned the stove and broke the door from its hinges, and plaintiff and her children only escaped violence by blowing out the light and fleeing in the darkness.

After trial the court made findings and denied the divorce, and plaintiff appeals. The only finding upon the question of the cruel treatment of defendant by plaintiff, and therefore the only finding upon which the judgment can be supported, is as follows: ‘ ‘ That the acts of the defendant alleged in the complaint did not inflict upon the plaintiff grievous bodily injury or grievous mental suffering.” But this is not the finding of an ultimate fact at all, and serves but to leave the essential question for the court’s determination still open and undecided. In

Smith

v.

Smith,

62 Cal. 466, the finding was in the following language: “That the repeated acts of cruelty as established by the evidence, upon the part of said defendant toward her said husband and children during the last several years have inflicted upon the plaintiff grievous mental suffering.” This court declared that such a finding is but a conclusion of law, and does not find any fact or issue in the case. Even so, that finding .is much more specific than the one here made. It declares that repeated acts of cruelty were established by the evidence, but it leaves to inference what those acts may be. In the case at bar even greater vagueness and uncertainty attaches to the language of the court. It is said that, “the acts of the defendant alleged in the complaint” did not inflict upon the plaintiff grievous bodily injury or grievous mental suffering. It does not find that the acts of the defendant alleged in the complaint were actually oommitted by him. It is left to surmise that they were so committed, but this court cannot indulge in surmise to supply the