This is an action for divorce on the ground of extreme cruelty, by the use of vile and offensive language, without any physical force or violence applied to the person of the plaintiff.
The answer of the defendant denies the cruelty and the use of the language alleged. The court found for the plaintiff, and decreed a divorce and permanent alimony of one hundred dollars per month while she shall remain unmarried, and one thousand dollars for her attorneys’ fees; and defendant appeals from the judgment, and from an order denying his motion for a new trial.
The material substance of the findings as to extreme cruelty is as follows: —
That, upon occasions when the defendant was intoxicated, he wrongfully and unjustly, and without sufficient provocation to justify him in so doing, called the plaintiff vile names, once called her a “ whore,” and on several different occasions called her a “damned bitch,” and a “ damned witch from hell,” in the presence and hearing of other people, and thereby inflicting upon her grievous mental suffering, but wdthout injury to her health; that when he called her such vile names she was not without fault, and that she was not uniformly kind to him; that there is reasonable apprehension to believe that such cruel treatment will be continued if a divorce is not granted.
The defendant contends, — 1. That these findings as to cruelty do not support the judgment; and 2. That they are not justified by the evidence.
1. As to the sufficiency of the finding, it is to be oh-*254served that the degree of cruelty which the law recognizes as a cause of divorce never has been exactly defined. Perhaps as near an approach to an exact definition as is practicable is made by Mr. Bishop, who, admitting the great difficulty of formulating such a definition, thinks the task not impossible, and gives, as his definition, the following: —
“ Cruelty is such conduct in one of the married parties . as, to the reasonable apprehension of the other- or in fact, renders cohabitation physically unsafe, to a degree justifying a withdrawal therefrom.” (1 Bishop on Marriage and Divorce, 6th ed., sec. 717.)
Yet this expression of the degree of cruelty which may justify a withdrawal from cohabitation seems to leave it quite as indefinite as was the degree which will justify'- a divorce without aid from this definition; and the learned author seems to admit as much, further on (sec. 740), where, referring to this definition, he says: “ By our definition of cruelty, the apprehension of physical danger to the complaining party must, to justify a divorce, have proceeded ‘to a degree justifying a withdrawal from cohabitation.’ Now, if this seems indefinite, so is the law. There is no possibility of measuring the depth of woe or danger thus required, except by the understandings of the men who occupy the bench and the jury-box, enlightened and strengthened by what has been heretofore deemed or adjudged.”
Certainly, where the fact upon which the law is to operate is indefinite, the law is necessarily indefinite and uncertain to the same degree; and generally, uncertainty of the law proceeds from uncertainty as to the ultimate matter of fact which forms a part of and a term in every proposition of law. .True, it is sometimes uncertain whether a law is mandatory or merely directory or permissive, but much oftener the “uncertainties of the law” arise from uncertainties as to the facts or things commanded, permitted, or prohibited; and so it is with *255the fact of cruelty prohibited by the law governing the marriage relation. Since all degrees of cruelty are not prohibited, and the requisite degree to bring it within the prohibition being uncertain, the law prohibiting it must be correspondingly uncertain.
But although the degree of cruelty constituting a ground for divorce may not have been exactly defined, it has been so described by the decisions of courts that it may be sufficiently identified for practical purposes; and although the judicial descriptions of what is and what is not a sufficient degree of cruelty do not reduce the distinction to a line clearly separating the sufficient from the insufficient degrees of cruelty in all possible cases, they reduce it to a very narrow zone, within which the true line of distinction is to be judicially ascertained or sufficiently approximated, by means of the peculiar circumstances of each case, viewed in the light of “what has been heretofore deemed or adjudged.” A great majority of the cases, however, will be found to fall within the authoritative descriptions of either the requisite or the insufficient degree of cruelty.
It is contended, however, by counsel for respondent, that extreme cruelty is defined by section 94 of the Civil Code, and that the finding in this case, being in the language of that section, must be sufficient. That section is as follows:—
“ Extreme cruelty is the infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage.”
If this section is to be considered a proper legal definition of the words “ extreme cruelty,” as used in section 92 of the same code, it certainly deprives those words of an essential part of their meaning as used in the books to express a cause of divorce, since it entirely omits the attribute of wrong or injustice. .“The infliction of grievous bodily injury or grievous mental suffering ” does not imply wrong or injustice, and it may be justi*256fiable; whereas the word “ cruelty,” alone, is always understood as implying wrong or injustice;- and the “ extreme cruelty” which is a cause of divorce is necessarily wrong, and never justifiable. Therefore, to saj that section 94 of the Civil Code was intended as a complete definition of the words “ extreme cruelty,” as used in section 92, would be to affirm that the mere “ infliction of grievous mental suffering,” though excusable or justifiable, is a cause of divorce, —an absurdity not to be attributed to the legislature. The probable object of the legislature, in enacting section 94 of the Civil Code, was to affirm the previous decisions of the supreme court of this state in the cases of Morris v. Morris, 14 Cal. 78, 73 Am. Dec. 615, and Powelson v. Powelson, 22 Cal. 360, to the effect that extreme cruelty may be effected without as well as with physical violence, and thus to settle the law on a point as to which there was thought to be some contrariety of judicial opinion in other states and in England. Surely it was not intended to disturb those decisions; for although they limit the rule that extreme cruelty may be the result of treatment other than that of physical violence to such treatment and conduct as produce bodily harm or ill health, or furnish reasonable apprehension that further cohabitation would endanger the life or physical health of the complaining party, yet they extend the rule quite as far as it has gone elsewhere in the United States or in England.
Although the character of the ill treatment, whether it operates directly upon the body or primarily upon the mind alone, and all the attending circumstances, are to be considered for the purpose of estimating the degree of the cruelty, yet the final test of its sufficiency, as a cause of divorce, must be its actual or reasonably apprehended injurious effect upon the body or health of the complaining party. (1 Bishop on Marriage and Divorce, 6th ed., secs. 732-733 b; Morris v. Morris, 14 Cal. 80; 73 Am. Dec. 615; Powelson v. Powelson, 22 Cal. 362.) This *257is the only practically safe rule. The grave remedy of divorce is disproportioned to the petty marital wrongs and annoyances whose injurious effect upon the body or health cannot be shown and sensibly appreciated, and it is' not to be administered on the ground of" cruelty, except in conservation of life or health. Many of such wrongs and annoyances, productive of more or less unhappiness, must be borne, if they cannot be justly remedied or avoided by the parties themselves. The following passage from Lord Stowell’s opinion in Evens v. Evens, 4 Eng. Ecc. 310, delivered one hundred years ago, has ever since been regarded and cited as sound law, both in England and the United States: —
“ Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention ,and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, — for it may exist on one side as well as on the other, — the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation, and if this, cannot be done, both must suffer in silence. And if it, be complained that by this inactivity of the courts much injustice may be suffered and much misery produced,, the answer is, that courts of justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no further; they cannot make men virtuous; and- as the happiness of the world depends upon its virtue, there may be much unhappiness in it w'hich human laws cannot undertake to remove. Still less is it cruelly, ■where it -wounds, not the natural feelings, but the acquired feelings, arising from particular rank and situ*258ation; for the court has no scale of sensibilities by which it can gauge the quantum of injury done and felt, and therefore, though the court will not absolutely exclude considerations of that sort, where they are stated merely as matter of aggravation, yet they cannot constitute cruelty where it would not otherwise have existed.”
Speaking of this passage, and of cruelty inflicted by other means than physical violence, Mr. Bishop says (sec. 725): “And though the court may not, as Lord Stowell said, have ‘any scale of sensibilities by which it can gauge the quantum of injury done and felt,’ it may sometimes perceive that it is greater than can be practically endured, as well when falling on the mind as on the' body. Equally, whether of the one sort or the other, the court must be made affirmatively to perceive that cruelty exists in fact, and is sufficient in degree, before it can grant the remedy.” Yet the practical view of the law is, that a degree of cruelty which cannot be perceived to injure the body or the health of the body, “can be practically endured,” and must be endured, if there is no other remedy than by divorce; because no “scale” by which to gauge the purely mental susceptibilities and sufferings has yet been invented or discovered, except such as indicate the degrees thereof by their perceptible effects upon the physical organization of the body.
From the foregoing considerations, it follows that the findings of fact are not sufficient to sustain the judgment. “ Extreme cruelty” is not expressly found in any sense; nor does it, in the legal sense above described, follow, as a necessary inference, from the facts found. The finding of “grievous mental suffering” is, and purports to be, only an inference or conclusion from the opprobrious language found to have been used by the defendant. In the case of Smith v. Smith, 62 Cal. 466, in which the only issue was as to the fact of extreme cruelty, it appeared that the trial court, after finding the acts claimed to have constituted extreme cruelty, con-*259eluded as follows: “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.” Held, that this finding “is but a conclusion of law, and does not find any fact in issue in the case.” How, whether this finding is a conclusion of law or a conclusion of fact, the decision that it is not a finding of any fact in issue is correct, though the fact of extreme cruelty was in issue: because, as we have seen, the infliction of grievous mental suffering is not the equivalent of extreme cruelty in a legal sense, nor is extreme cruelty a necessary inference from the infliction of grievous mental suffering, since the latter may be excusable, and even justifiable, w'hile the former never is so.
Although the evidence is conflicting as to the finding that the defendant, when intoxicated, unjustly, and without sufficient provocation, once called the plaintiff a wdiore, and several times a bitch, and a witch from hell, in the presence of other people, yet this finding is justifiable by the rule applicable to findings upon conflicting evidence; but, qualified as it is by the further findings that the plaintiff was not uniformly kind to the defendant, that at the times when he called her those vile names she was not without fault, and that her health was not injured thereby, it does not stand the final test of its sufficiency, as it does not affirmatively show any actual or reasonably apprehended injurious effect of the language used upon the body or health of the plaintiff, and therefore it could not have been affirmatively perceived by the court that the cruelty was sufficient in degree. Upon the findings of fact, I think the judgment should have been for the defendant; and as the case appears to have been thoroughly tried as to the facts, it appears very improbable that a new trial would result more favorably to the plaintiff. (Ford v. Chambers, 28 Cal. 13.)
*260A careful examination of the evidence will show that it is barely sufficient to justify even the insufficient findings, and that there are many circumstances tending to qualify the facts found in favor of the defendant, and to mitigate their effect upon the plaintiff’s mind.
Both parties had been married before. The plaintiff had three children by her former marriage, aged, respectively, seven, nine, and eleven years, but the defendant had no children by his former marriage. The plaintiff had about two thousand five hundred dollars, and defendant had property worth about one hundred thousand dollars, at the time of their marriage. The intemperate habits of the defendant, such as they were after marriage, were known to plaintiff before marriage, and she testified that she once broke off her engagement to marry him on that account; and as a condition of renewing it, she required him to sign a written pledge to her, not that he would not drink, but only that he would not drink to excess, and that his hand trembled from the effect of drink at the time he signed the pledge. Soon after the marriage, plaintiff’s niece, then a young unmarried lady, came to live with them, and remained until she was married, on July 25, 1888, nearly three months after the commencement of this suit; for it appears that the plaintiff continued to reside in defendant’s house up to the time of trial, as before, except that he occupied a separate room from hers. The defendant kept his pledge until about two months after marriage.
The niece, Mrs. Albee, testified as to the first time he became intoxicated after marriage, as follows: “When I first came down I was very much pleased with my aunt’s choice; he was apparently a gentleman, and acted the gentleman for quite a while, until, probably six weeks afterward, we came home and found him in a state of intoxication, in the hall, and my aunt remonstrated with him after he got into the room, and he became very angry and swore a great deal; .... she remonstrated *261with him, and said to him, ‘Do you remember the promise you made to me?’ He said, ‘My promise outside of a business transaction does not amount to anything.’” As to how often after this first scene he became intoxicated or called her vile names the evidence is indefinite. The plaintiff testified that it may have been two or three times a month, but probably oftener. She could not tell how often, but that the first time he called her a whore, or bitch, was during the holidays, when he came home intoxicated late at night, upon which occasion the principal quarrel seems to have occurred, and as to which the plaintiff, in part, testified as follows: “I would not let him in the room at night; .... that was the first occasion that happened, and he was going to kick in the door . . . . I never have seen him quite so mad as that before; then I was nervous; I did not know; I was all alone in the house; my little girl was in the room with me; my niece was at the theater with Mr. Albee. My little girl heard a noise in the house, and asked me if she could come in my room. I told her she could come until Mr. Waldron came. I says: ‘If he comes home sober, you will have to go to your own room; if he comes home drunk, you can stay.’ .... We heard something in the hall as if somebody fell. He came to my door, and demanded to come in; I told him he could not come in. . . . . He said he wanted some quilts; I said I had no quilts, only what was on my bed. I told him if he had come home sober he could have come in. He says, 6 Open this door,’ and went on damning, and cursing, and swearing, and I thought I would scare him and call a policeman. I raised the window. There was no policeman around there. _ When I called the policeim n he says, ‘You damn bitch, you damn whore, you damn trump,’ or something like trump. I says, ‘I will not stand that in the world.’ I was paralyzed; I never thought Mr. Waldron would call me any such names as that. When he called me these names first, it almost *262paralyzed me. Then the colored girl heard him downstairs, and she came up and tried to get him down-stairs; he went down and sat in the parlor by the fire.....It was about the holidays, either the last part of December or a little after New-Year’s. I cannot exactly tell when the next time was. Of course I did not feel very kindly toward him after he called me those names, and when I got him sober, I gave him a piece of my mind about it. He was sitting at the head of the table, and I says to him: ‘You have called me the very worst kind of names the other night, and remember, I will never stand that’; I says, ‘I have not done anything to deserve any such names as that, and you can’t do that’; I says, ‘Probably you are calling me after the women that you have been used to associate with all your life; it comes natural; but remember, you cannot call me any such names as that.’ He spoke of his property at Washington Gardens, and says, “Look at the wealth ahead of you’; I says, ‘The wealth ahead of me don’t license you to call me any such names.’ He sajs, ‘If you leave me you will go to the poor-house.’ It was no use for me to talk to him at all about it. He behaved himself for a little while,—about a week or so he behaved' himself,—kind of staid sober, — did not drink much,—he kind of thought I would do something, I guess. Then I guess he thought I would not. I don’t know what it was,—in the hall up-stairs, — anyhow, he says, ‘You are a damn whore, anyhow.’ Just then I leaned over the banister and saw my niece on the stairs, and I says, ‘Jennie, did you hear what he called meV’ She says,‘Yes, I did.’ He says, ‘O, well, I will take it back.’ .... ‘When he thought she heard him, he says, ‘I will take it back.’ I says, ‘You better take it back.’”
It appears that there was no spare bed in the hduse at the time she barred him out of her room, their spare bedroom not being fully furnished at that time.
On cross-examination, plaintiff said: “ The time there *263was a fuss about the quilts was the first time he called me names. .... When I told him he could not come in he says, 1 want some quilts.’ I says, ‘ I have none in here, only what is on my bed, and if you had come home sober, sir, you could come in, and have quilts, where you belong.’ ”
Being asked by her counsel if she ever did anything to provoke him or seek quarrels with him, she answered: “He would come home drunk, you know; I would say, ‘Now, Dave Waldron, now you are drunk again’; I would go on, and I said, ‘Now, you know very well the promise you made me, and the condition upon which I married you, and you have broken that promise, and you know you took an oath to me, and you kept sober, before you married me, for months.’ .... If he would come home drunk and fall in the doorway, and lay in the hall so we could not get him up, when my niece invited company, we had to send over to Mansfield to take him off of the floor; he has fallen in the front door so the whole house shook. When he would come home so, I was a little bit provoked, you know; then I would think it was my time to talk to him, and tell him what he was doing; he could not enjoy his money, and when he would get to drinking, he would kill himself. I would tell him about his soul and the hereafter; then he would answer me in the most terrible blasphemous remarks, when I would begin anything about religious subjects. .... At one time, I don’t know as he had much liquor, . . . . I made the most solemn appeal to him in the dining-room. When I got through he knew I was right. .... When I made this eloquent appeal to him, he picked up his head and said,‘You are a damned fool.’ My appeal was all right, but it was foolish to apply it to him. .... All I would do, I would talk to him, you know, and sometimes I would scold him. .... I says, ‘Did n’t your first wife ever scold you about your actions generally, and try to make you do what was right? *264Didn’t she scold like I do?’ He said: ‘She scolded louder and faster than you do, but she did not spread it on quite so thick,’ meaning it was not to the point, as mine was.”
Mrs. Albee, the niece, testified: “I think it was after Christmas that his language and conduct was most vile, — well, almost up to the time ^tnd after she applied for a divorce.”' So it seems that the plaintiff and her niece remained in the house with him, and that the quarreling was kept up, after the suit for divorce had been' commenced,— the niece remaining until she was married, nearly three months after the suit was commenced.
Being asked how often she heard him call plaintiff vile names before the divorce suit was commenced, Mrs. Albee answered: “ I never heard him call her out of her name except this once. I heard him call her a whore but once. I never heard him call her a bitch.....I remonstrated with him. I was very indignant, and I spoke to him about his conduct.”
Plaintiff admitted that the defendant was an honest man in all his business transactions, and that he liberally supplied her and her children and niece. She complained of no unkindness when he was sober, and feared no physical violence from him when he was drunk. In their quarrels she appears to have been more than his match, though she could not descend to answer his profanity and obscenity in kind. While drunkenness was no excuse for calling her vile names under any circumstances, yet the injurious effect thereof upon her mind should not have been, and probably was not, so bad as if he had deliberately called her by those names when he was sober. No mental suffering produced by his drunkenness, merely, can be considered, because not complained of. (Haskell v. Haskell, 54 Cal. 262.) The mental suffering, caused by his words alone, can be considered in this case.
The finding that defendant called the plaintiff a whore *265and a bitch, in the presence and hearing of other people, should be qualified by the admitted facts that none but the niece and her caller and the colored servant heard him call her out of her name, and that he was not aware that even they heard what he said, or that the caller upon the niece was in the house at the time. This seems material, as tending both to modify the otherwise apparent motive of the defendant, and to mitigate the alleged painful effect upon the mind of the plaintiff, as without this qualification it would appear that the defendant intended to defame the plaintiff in public estimation, which would indicate a worse motive on his part, and produce a more painful effect upon her mind than would the mere intention privately to annoy her, or to revenge himself for the fancied wrongs of having been barred out of her room and threatened with the police.
While the defamatory, obscene, and profane language of the defendant was wholly unjustified, inexcusable, and unmanly, it may be said that the conduct of the plaintiff was at least unkind and censorious, and tended to provoke anger and harsh language on the part of the defendant. It probably resulted from her ill temper, bad judgment, and a mistaken view of the duty of a wife under the circumstances. She probably deemed it her duty, by means of censure, reproach, and scolding, to make her husband “ do what was right,” and it seems that she faithfully, in season and out of season, applied such means. In this I think she was mistaken. Intemperate husbands are seldom, if ever, reformed by such treatment, whereas uniform kindness may often prove effectual, and never harmful; but should kindness fail, and the intemperance of the husband become habitual, the wife will be entitled to a divorce on that ground alone.
I think the judgment should be reversed, and the court below directed to render judgment for the defendant on *266the findings, without costs, and that the appellant pay his own costs of the appeal.
Belcher, C. C., and Foote, C., concurred.
The Court.For the reasons given in the foregoing opinion, the judgment is reversed, and the court below directed to render judgment for the defendant on the findings, without costs, and that the appellant pay his own costs of the appeal.
Paterson, J., dissented.