I dissent. This action was tried to the Court sitting without a jury. The evidence is in sharp conflict. The trial judge, Honorable John Hurly of the Seventeenth Judicial District, has had many years of experience as a trial judge, was formerly a justice of this court, and is highly regarded by the bar of the state. The forceful expressions contained in his findings and conclusions in the case at bar no doubt sprang from his firm conviction that the plaintiff testified truthfully and that the defendant did not.
The applicable rule in such circumstances is clearly stated in the case of Fousek v. Deforest, 90 Mont. 448, 4 P.2d 472,473, where this court said: "The rule is firmly established that findings of the trial court in an equity case will not be disturbed unless the evidence clearly preponderates against them (National Bank of Anaconda v. Yegen, 83 Mont. 265, 271 P. 612), and due allowance must be made for the more advantageous position occupied by the trial judge who observed the conduct and appearance of the witnesses. Barnard Realty Co. v. City of Butte,55 Mont. 384, 177 P. 402."
In the case of In re Noyes' Estate, 40 Mont. 178, 189,105 P. 1013, 1017, this court, speaking thru Mr. Chief Justice Brantly, said: "It may well be said that Conant's testimony is not satisfactory, in that in some important particulars he is not positive and definite in his statements; nevertheless the credit to be given it was a question exclusively within the province of the *Page 119 trial court to determine, and its determination thereon is conclusive."
"A jury having been waived, the findings of the trial court have the same efficacy as a verdict." Davis v. McEwen Bros., 9 Cir., 193 F. 305, 311, 113 C.C.A. 229 (a Montana case). The rule has the support of a long line of decisions by this court.
The rule being firmly established that the verdict of the jury, where a jury is had, and the findings of the court where the jury is waived, or the right to a jury is not authorized, this court is without power to invade the province of the trial court and become the trier of the facts in place of the court below, except where there is no substantial evidence to sustain the judgment of the trial court. But it is said, "the plaintiff failed to sustain the burden of proving the allegation of the infliction of extreme cruelty." Let us review the evidence in that behalf. The parties were married February 3, 1941. The plaintiff, the managing partner in a lumber yard at Cut Bank for many years, had accumulated considerable property. His first wife died in 1935, and there were four children from that marriage, three daughters and a son, all grown and the daughters all married. The defendant had been twice married before marriage with the plaintiff. The plaintiff said he had difficulty with the defendant "shortly after we were married." He invited one of his daughters and her husband to Sunday dinner; his wife was mad and would not talk to him for two or three days. He did not know what was the matter and he asked her and she told him he had invited them without consulting her. His wife was sulky and would not speak to him; she would not sleep with him, but slept in the front room on a couch. They lived in the "Buttrey Apartments," and had but one bedroom. He complained and she said she could not sleep with him because he snored. They lived in the apartment less than a year and he, in the meantime, in accordance with a promise to her, built a modern home with six rooms and a bath, the upstairs not being finished. The cost of the new home was "seven or eight" thousand dollars. The defendant continued to refuse to sleep with *Page 120 him. Her demeanor was "fairly good" the first year while the new home was being built. "After we got the house finished and furnished, then she didn't seem to have any use for me. If she was sitting in the front room, and I would come in there, she would run out and go into her room and lock the door * * *" and she kept on that way for at least a year. "After dinner she would go into her room and either lock the door and turn on the radio or she would get her hat on and run downtown. I don't know where she went." She generally came home around ten o'clock." She made derogatory remarks about one of his daughters; said she heard the daughter was living with another man, "She didn't want anything to do with them (his) children because they were Indians." He said his children had Indian blood. "Any time she had an opportunity she wanted to impress upon my mind that she (his daughter) was undesirable for her (the defendant) to associate with." Over objection the plaintiff was allowed to testify that the defendant refused to sign deeds to certain property which he desired to execute in the course of his business interests in oil and gas lands. She grounded her objection on the fact that by signing the deed she would release her dower interest. There is nothing in the record to indicate the plaintiff sought to defeat her dower interest in his land. It is worthy of note that she had certain absolute rights in plaintiff's personal property and would have in case of his death only a life estate in his realty, and converting realty into cash was to her advantage. Paragraph 5 of the Complaint is as follows:
"That the defendant for more than two years last past has perpetually nagged, fumed and scolded at the plaintiff and treated him in an abusive and scornful manner; that defendant repeatedly called plaintiff `a big liar', which gave rise to quarrels in the home and thus disturbed his peace of mind and happiness;
"That ever since the spring of 1941 the defendant has refused to sleep with the plaintiff and persists in sleeping apart from him against his will and wishes;
"That plaintiff's former wife is deceased and there were *Page 121 several children, the issue of his former marriage; that ever since the marriage of the parties hereto the defendant has continually run down and made slanderous remarks against his said children and has refused to make them welcome visitors in his home, all of which has caused plaintiff great mental suffering. That defendant's tirades against his said children are made maliciously and with the intent on the part of the defendant to hurt the feelings of plaintiff and to vex and annoy him.
"That defendant for more than one year last past has repeatedly and maliciously accused the plaintiff of unchastity and marital infidelity, all of which was and is wholly false and untrue and without any foundation in fact whatsoever and same caused plaintiff great anguish of mind and grievous mental suffering."
The facts alleged are substantially supported by the plaintiff's testimony. The defendant's testimony denies that of the plaintiff in essential points, and thereby brings the testimony into sharp conflict. It is significant, however, that defendant admitted that the plaintiff's snoring annoyed her, and she mentioned that the plaintiff had gas on his stomach, leaving the impression that his expulsion of such gas was offensive, and that, with plaintiff's snoring, was her excuse for refusing to sleep with him. She also, amongst other annoying acts, accused him before her daughter of trying to poison the daughter's mind against the defendant. The majority finds nothing in the situation to justify plaintiff's allegation of cruelty. The law in my opinion would find the acts enumerated, when persisted in, clearly inimical to domestic felicity, and locking her bedroom door against the plaintiff is alone sufficient to entitle the plaintiff to a decree of divorce. However, the defendant endeavors to take the force out of the fact that she locked her door against the plaintiff by claim of fear from housebreakers. She expressed no concern about any evil that might come to her husband by a housebreaker, obviously in that, as in other matters, she was indifferent as to what might occur to him. The trial court *Page 122 concluded these controverted questions in favor of the plaintiff. It was solely within the province of that court to resolve such facts. He had the witnesses before him and could observe their demeanor, and it was for that court and not this to hear and determine the facts.
Dealing further with what acts of one party to a divorce proceeding constitute cruelty, any reasonable mind must concede that what would be cruelty to a "rough neck" who was immune to criticism and hard knocks would be no criterion if the same reproofs were directed to one of keen sensibilities and reserved emotions. In other words, what would constitute cruelty when directed to one person might meet with utter indifference when directed to another. This court said in Williams v. Williams,85 Mont. 446, 278 P. 1009, 1010: "The particular acts of cruelty of which complaint is made are not in themselves determining factors, but the question is whether the acts of cruelty are of such a nature and character as to destroy the peace of mind and happiness of the injured party. Donaldson v. Donaldson, 31 Idaho 180,170 P. 94; Fleming v. Fleming, 95 Cal. 430, 30 P. 566, 29 Am. St. Rep. 124."
In Donaldson v. Donaldson, supra [31 Idaho 180, 170 P. 95], cited in the Williams case, above, the Court quotes the following language: "Extreme cruelty is a term of relative meaning, and a course of conduct that would inflict grievous mental suffering upon one person might not have that effect upon another. Hence no fixed legal given case can be laid down. The judge rule for determining its existence in any who tries the case and has the parties before him for observation in the light of the evidence is the one to whom the law commits the determination of this question in the first instance, and this court will not disturb a finding that particular acts constitute grievous mental suffering, unless the evidence in support of the finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court."
In Fleming v. Fleming, supra [95 Cal. 430, 30 P. 567], also cited in the Williams case, the Court said: "The habits and *Page 123 dispositions of different married persons vary so much that it is impossible to lay down any universal rule for the determination of what indignities should be regarded as grounds of divorce under the statute. Among savages, the conduct imputed to this defendant might not be regarded as reprehensible. The legislature has necessarily employed general words, and left each case to be determined according to its own peculiar circumstances by the good sense and judgment of courts and juries. `Whether in any given case there has been inflicted this "grievous mental suffering," is a pure question of fact, to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party.' Barnes v. Barnes [95 Cal. 171], 30 P. 298 [16 L.R.A. 660] filed June 18, 1892. We cannot, as a matter of law, say that the conduct charged in the complaint did not inflict upon the plaintiff grievous mental suffering. The court below has found as a fact that it did, and it is the province of that court, and not our own, to determine the facts."
In Barnes v. Barnes, supra [95 Cal. 171, 30 P. 299], the Court said: "It may be true that there is `no scale by which to gauge the purely mental susceptibilities and sufferings' of another, nor is it necessary that there should be any such exact measure. The common judgment of mankind recognizes the fact that there may be unfounded charges and cruel imputations which are not more easily borne than physical bruises, and the necessary effect of which is to cause great mental distress to the person against whom they are made. Whether in any given case there has been inflicted this `grievous mental suffering' is a pure question of fact to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party; and no arbitrary rule of law as to what particular probative facts shall exist in order to justify a finding of the ultimate facts of its existence can be given. As said by Mr. Justice McFarland in his dissent opinion in Waldron v. *Page 124 Waldron, supra [85 Cal. 251, 24 P. 649, 858, 9 L.R.A. 487]: `Every case where a divorce is sought on this ground must depend upon its own particular facts; and a correct decision must depend — as most cases depend — upon the sound sense and judgment of juries and courts.'"
The judgment should be affirmed.