delivered the opinion of the court.
This action was brought to secure a divorce upon the ground of extreme cruelty. The plaintiff prevailed in the district court and the defendant appeals from the judgment.
The only question presented is: Does the complaint state a cause of action? In paragraphs 6, 7 and 8 an attempt is made to charge the defendant with extreme cruelty as defined in our Civil Code, section 134, which reads as follows: “Sec. 134. Extreme cruelty is the infliction or threat of bodily injury dangerous to life, or the repeated infliction or threat of grievous bodily injury, upon the other party, by one party to the marriage, or the repeated publication of false charges against the chastity of the wife by the husband. ’ ’
The complaint does not attempt to charge the defendant with making threats of inflicting bodily injury, or of publishing false charges against the chastity of plaintiff; so that it mnst be tested by one of the other definitions given in that section, namely, the infliction of bodily injury dangerous to life, or the repeated infliction of grievous bodily injury. The particular acts of cruelty of which complaint is made consist of defendant’s striking, beating and choking the plaintiff, throwing her violently against the side of a barn, throwing her down two steps out of their house and other like brutal acts. It is repeatedly said that these acts caused plaintiff great bodily and mental pain and suffering; but the complaint does not anywhere allege that they produced grievous bodily injury or bodily injury dangerous to plaintiff’s life, and for this reason appellant contends that the complaint does not state a cause of action.
Prior to 1895 extreme cruelty was a ground for divorce, but was not defined by statute. The courts were left to frame such definitions as general usage might warrant. In 1885 this court, in Albert v. Albert, 5 Mont. 577, 51 Am. Rep. 86, 6 Pac. 23, *409in considering an action for divorce on the ground of extreme cruelty, said: “A husband may not raise his hand against his wife, except in absolute defense of his life, or to prevent his receiving great bodily harm; and then he can only use force sufficient to protect himself from the danger.” For ten years that doctrine was apparently accepted as reflecting the opinions of courts; but in 1895, in adopting section 134 of our Civil Code, the legislature, presumably with full knowledge of the rule announced in the Albert Case, saw fit to change entirely the policy of the law. Extreme cruelty no longer was made to represent the mere indignity suffered by the wife consequent upon her receiving from the husband a blow delivered in anger, but it became from thenceforth such measure of actual physical injury, inflicted by one party to the marriage upon the other, that thereafter it was deemed unsafe for the parties longer to live together, and therefore sufficient, in the estimation of the legislature, to warrant a divorce. While under the doctrine announced in the Albert Case, a single blow by the husband delivered in anger against the wife, would doubtless have been held by the courts sufficient provocation for a divorce, the legislature, being clothed with full power to say upon what terms divorces might be had, took away from the courts the authority, theretofore exercised, to define extreme cruelty, and, while leaving it in the law as a ground for the annulment of marriage, gave to it a definition which completely changed the theory which the courts had adopted. In the view of the legislature, a husband may beat or otherwise maltreat his wife, and even do so in a brutal manner, without giving rise to an action for divorce, provided only that his mistreatment does not produce grievous bodily injury and be repeated, or if it occurs but once, that it does not produce bodily injury dangerous to life.
Under the changed rule as adopted by the legislature, grievous b<^lily injury and bodily injury dangerous to life are made ultimate facts which must be proved, and, in order to be proved, must be pleaded. (Smith v. Smith, 124 Cal. 651, *41057 Pac. 573.) While a violent blow might produce bodily injury, the question whether it will produce the grievous bodily injury of the statute, or bodily injury dangerous to life, is one of fact for the trial court or jury to determine from all the evidence in the. case, where the question is properly presented by the pleadings.
To ask this court now to determine as a question of law that the acts complained of in this instance caused the plaintiff grievous bodily injury or bodily injury dangerous to’ her life, or, in other words, constitute extreme cruelty, is in effect to ask this court to repeal section 134 of the Civil Code and restore the rule of the Albert Case — to set aside the definition of extreme cruelty as given by the statute and substitute therefor one of the court’s own. This the court cannot do. The definitions given by the statute are exclusive and binding upon the courts and litigants alike. No matter how censurable the defendant’s conduct may have been in this instance, if the injuries inflicted were not grievous bodily injuries, or bodily injuries dangerous to life, they did not constitute extreme cruelty as defined by the statute; and, as the complaint does not allege that they were injuries of the character mentioned, this court cannot assume that they were.
Under either of the definitions given in section 134 above and here considered, a complaint for divorce must set forth the particular facts relied upon, and must allege that the acts enumerated produced grievous bodily injury, which was repeated in the one instance, or that they produced bodily injury dangerous to life, in the other; and failing to do either, this complaint does not state a cause of action. (12 Cyc. 668, and cases cited: 1 Nelson on Divorce and Separation, 334; 2 Bishop on Divorce, 1433; Horne v. Horne, 1 Tenn. Ch. 259; Wagner v. Wagner, 3 Penne. (Del.) 303, 51 Atl. 603.) Under our view, it is immaterial that this complaint would have been held sufficient prior to the adoption of the Codes.
The court allowed the plaintiff permanent alimony to the extent of $50 per month until the further order of the court. *411The complaint does not contain any allegations of plaintiff’s necessity for alimony or of defendant’s ability to pay it; and, while we are not prepared to say that alimony may not be allowed as strictly ancillary to a proceeding for divorce, we think the better practice is for the complaint to set forth the necessary facts upon which alimony may be allowed.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Mr. Chief Justice Brantly concurs.