Johnson v. Johnson

VANCLIEF, C. Action for divorce on the ground of extreme cruelty in which the plaintiff prevailed. Besides the divorce, the decree awarded to plaintiff the custody of an infant son of the parties and the greater portion of the community property, but no permanent alimony. Defendant appeals from the judgment and from an order denying his motion for a new trial.

1. Defendant demurred to the complaint on the grounds that it is ambiguous, uncertain, and unintelligible, in that it does not appear therefrom “when or where defendant was guilty of the alleged extreme cruelty,” nor “what was the nature, character, or extent of the alleged acts of extreme cruelty.” The allegations of the complaint charging cruelty are as follows: “That during their marriage defendant has been guilty of extreme cruelty to plaintiff, in this: That about three years ago said defendant struck plaintiff without cause, thereby rendering her insensible, and since said time said defendant has wrongfully and unjustly, and without any provocation, continually used vile and offensive language to plaintiff whenever said plaintiff and defendant have been together, thereby inflicting upon said plaintiff grievous mental suffering, by reason of which mental suffering so inflicted by defendant, as aforesaid, plaintiff has been injured in health to such a degree that, by reason of the infliction of said mental suffering as aforesaid by defendant, said plaintiff has become sick, and her health has been greatly impaired. That further cohabitation between the plaintiff and defendant will en[448]danger the physical health and the life of this plaintiff. ” This seems sufficiently definite as to the times, nature and extent or degree of the cruelty; and, from the averment that it was commenced by a beating three years before the commencement of the action, and was thence continued by abusive language “whenever said plaintiff and defendant have been together,” it must be understood that the places were wherever “said plaintiff and defendant had been together” during that period of three years, which places were presumably as well known to the defendant as to plaintiff. The demurrer does not specify, as a deficiency, that the abusive language is not set out. As against the objections specified in the demurrer, I think the complaint is barely sufficient.

2. The findings as to the fact of extreme cruelty are in the language of the complaint, and! therefore support the judgment in this respect; and it is not denied that they are sufficient in all other respects.