I think the trial court's conclusion should be sustained. In reaching this conclusion, where the testimony is conflicting — in accordance with well-settled principles — I accept that most favorable to plaintiff, she being the prevailing party in the court below. The court specifically found that "Plaintiff is entitled to a divorce from the bonds of matrimony on the grounds of statutory cruelty, as prayed for in her cross-complaint." I agree with many of the elementary principles of law reiterated in the majority opinion but most of them in my opinion, are not applicable to this case.
I agree that had objection been raised thereto it would have been the duty of the court to disregard the cross-complaint that was set out in the reply, or to strike it from the files as unwarranted. But no objection was made to it. In legal effect the parties and the court considered the cross-complaint set out in the reply as an amendment to the complaint, adding a cause of action thereto but treating it as an amendment made as of the time that it was actually filed. The parties, without objection, tried the case on that theory and do not now raise any question regarding the propriety of the plaintiff's cross-complaint. The only objection now made to it is that it does not state facts sufficient to constitute a cause for divorce in that it does not allege that the cruelty existed for the required statutory period. It should be noted too that no such objection was raised in the trial court. It was not attacked by demurrer, motion, objection to evidence in its support or otherwise.
The allegations with respect to the duration of the alleged cruelty are as follows: *Page 217
"That since said marriage, the Defendant has been guilty, of extreme cruelty, in that said Defendant has inflicted grievous and bodily injury, and mental suffering upon the Plaintiff by pursuing such a course of conduct toward her and such treatment of her, existing in and persisted in for more than one yearimmediately preceding the commencement of this action, which justly and reasonably is of such a nature and character as to destroy the peace of mind and happiness of the Plaintiff and to entirely defeat the proper and legitimate objects of marriage, and to render the continuance of the married relation between the Plaintiff and the Defendant perpetually unreasonable and intolerable. That in part, such conduct and treatment is as follows:
"That since said marriage and particularly during the pastfive years, Defendant has been rough, tough, overbearing, cruel, brutal, and neglectful in his treatment of the Plaintiff; that he has nagged her and found fault with her in many things she has done; that Defendant cannot write intelligibly and during their married life, Plaintiff has had to be the bookkeeper, auditor, and letter writer for the Defendant in his various transactions. During all said time, Plaintiff has tried to reason with Defendant, but when she has done so, Defendant has raged and become violent. That Defendant is cunning and in public can act like a gentleman; but in private, Defendant, in his treatment toward Plaintiff, has acted like a `hell cat'."
These allegations are certainly sufficient to show that the alleged cruelty existed for the statutory period. It is to be noted that under our present statute, sec. 5738, Rev. Codes 1935, the cruelty need not have existed for one year immediatelypreceding the commencement of the action, but "for a period of one (1) year before the commencement of the action for divorce." Hence defendant's absence from Montana for much of the year immediately preceding the commencement of the action is immaterial. It should be noted too that under the first part of section 5738, Revised Codes, "the infliction, or threat of grievous bodily injury" is ground for divorce regardless *Page 218 of the length of time that it continued. But the majority opinion asserts that the allegations of cruelty are too general and not sufficiently specific and that their denial does not raise issues of fact. I agree that it is better practice to be more specific in the allegations and that upon proper objection the plaintiff should have been required to set out the acts constituting cruelty in more detail. There is respectable authority holding that it is sufficient to charge cruelty in the language of the statute without pleading the evidence constituting the cruelty and that such a pleading is good as against a general demurrer. Thus in Etheridge v. Etheridge, 120 Md. 11, 87 A. 497, 498, the court said: "Abandonment and desertion, and cruelty have not been regarded by this court, or by the courts of this state, as purely and exclusively questions of law, but rather as mixed questions of law and fact to be decided at the final hearing. The pleader has never been required to set out the facts and circumstances which constitute the evidence of the causes of the divorce alleged, but the bill which charged the enumerated grounds of divorce in the language of the statute has been uniformly regarded to be sufficient."
Here there was not even a general demurrer interposed to the cross-complaint in the reply. In Mumford v. Mumford, 13 R.I. 19, the court said: "The court holds, affirming the decision in Brown v. Brown, 2 R.I. 381, that in a petition for divorce it is in general sufficient to charge the offense in the language of the statute. If greater particularity becomes necessary for the respondent's defence, the court can, by special order, provide for such particularity or specifications as to time and place as the case requires, but this is a matter resting in the discretion of the judge. Ordinarily, if either party is surprised by unexpected evidence, justice can be done by giving time or by a continuance."
In Dakin v. Dakin, 1 Neb. Unof. 457, 95 N.W. 781, the same question was under consideration under very similar facts. The court in holding the pleading sufficient said: "The charge of cruelty set out in the cross-bill of the defendant is *Page 219 in the most general terms, the only specific acts constituting the same being that the plaintiff allowed his mother to strike the defendant and to call her obscene and abusive names. Fairness to the attorney for appellant who appears for him in this court requires us to state that he had nothing to do with the trial of the case below. In this court the objection is made that the cross-petition does not state a cause of action. He insists that it contains nothing more than legal conclusions, unsupported by any statement of facts from which the court can determine whether the charge would constitute legal cruelty sufficient to entitle the defendant to a divorce. Many authorities are cited in support of this contention, and we have no doubt that, if objection to the cross-petition had been timely made, it would have been held too general in its statements, but not absolutely insufficient. The plaintiff made no objection to the cross-bill of the defendant in the district court; he neither demurred, nor asked for a more specific statement. He made no objection to the introduction of evidence by the defendant in support of her cross-bill, and we think it is now too late to insist here on objections that were not raised or presented to the court below. The plaintiff allowed the trial to proceed upon the theory that the defendant's cross-bill was sufficient, and it would be unfair both to the defendant, and to the court who tried the cause below, to allow the plaintiff to take any benefit from the generality of the statements of a pleading which he has treated as good and sufficient up to this time."
In Seibel v. Seibel, 30 Ohio App. 198, 164 N.E. 648, the court said: "The statute provides as a ground for divorce extreme cruelty and gross neglect of duty. * * * These statutory grounds are alleged. Facts constituting these grounds would be evidence in the case. It is argued that the grounds stated in the petition are only allegations of law and not of facts." After referring to another case involving a similar point the court continued as follows: "Applying this rule to the instant case, we have the statutory ground for divorce alleged. The allegations *Page 220 put in issue the facts whether the defendant was guilty of gross neglect of duty or extreme cruelty. Whether or not the court, on motion, should have required the plaintiff to make the petition definite and certain, is not now before us."
In McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459,462, the court had this to say: "In our opinion the petition for divorce filed in the district court by the appellee was sufficient as against a general demurrer. It states matters showing the jurisdiction of the district court of Hardeman county, Tex., under article 4631, R.C.S. of Texas 1925. Also the petition alleges the statutory ground for divorce under subdivision 1 of article 4629, R.C.S. of Texas 1925. In this connection we hold that a divorce granted by a court of competent jurisdiction on a petition which merely alleges the defendant has been guilty of such excesses, cruel treatment, and outrages against the plaintiff of such a nature as to render their further living together insupportable, is good against a general demurrer. Of course such an allegation, in a way, is the pleading of a conclusion when tested by proper special exception, but, when tested by a general exception, it is a sufficient allegation of a fact, to authorize the district court to hear the evidence, and on which a valid decree of divorce may be awarded."
To the same general effect is Renfro. v. Renfro, Tex. Civ. App., 80 S.W.2d 348, and Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.
If defendant desired a more definite statement of time and place of the cruelty relied upon he should have raised the point in appropriate manner. If he was unable to meet the charges because they were too indefinite as to time, place and circumstances, he is the one to raise that objection. Neither this court nor the lower court is obligated to raise the point of its own motion.
The only reasonable inference that can be drawn is that defendant well knew the time, place and circumstances of the cruelty relied upon by plaintiff and did not desire a more *Page 221 definite statement thereof. He does not now contend that they were too general to enable him to prepare his defense.
Hence it is my opinion that the cross-complaint set out in the reply stated facts sufficient to constitute a cause of action for divorce, particularly where, as here, its sufficiency is questioned for the first time in this court. I think it is sufficient under either of two theories. First, it charges the infliction of grievous bodily injury and the threat of grievous bodily injury within the first part of section 5738, Revised Codes, and that form of cruelty need not have existed for a year in order to constitute grounds for a divorce. As to those acts of cruelty the complaint is specific as to time, place and circumstances. Any further details would render the complaint subject to attack for pleading the evidence. This court has held that acts such as those here constitute cruelty in Albert v. Albert, 5 Mont. 577, 6 P. 23, 51 Am. Rep. 86, where it said: "We think one beating or whipping of a wife by her husband sufficient to establish the charge of extreme cruelty. Such an act could not be accidental or by mistake, and if not, the probabilities would be that it might be repeated again and again, subjecting the wife to constant fear and rendering her life miserable. It is extremely cruel for a husband to beat or whip his wife even once. Mere words can never afford any provocation or excuse for such an act. No words can justify an assault. A husband is not authorized to whip his wife because she calls him hard names, nor can he graduate the force of his chastisement by the vigor of the language used. 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."
After the decision in the Albert case the statute was amended so that before the infliction of bodily injury would be cause for divorce it must also be "dangerous to life." Because of the change in the statute, this court by a divided opinion in Ryan v. Ryan, 33 Mont. 406, 84 P. 494, held that whether one violent *Page 222 blow would be sufficient to produce injury dangerous to life would be for the trier of the facts and repudiated the rule of the Albert case. It held that the complaint, in failing to allege that the acts produced bodily injury dangerous to life did not state a cause of action. The decision in the Ryan case was made in 1905. In 1907 the legislature amended the statute to read as it now is where all that is necessary is the infliction or threat of grievous bodily injury to constitute cruelty sufficient for a divorce. The effect of the 1907 amendment was to do away with the necessity in a divorce action of alleging or proving that the cruelty was dangerous to life.
Secondly, the cross-complaint charges the infliction of mental suffering by a course of conduct existing and persisted in for one year before the commencement of the action so as to meet the requirements of the last clause in section 5738. Revised Codes. Was the proof sufficient to sustain the allegations? I think it was. Plaintiff testified:
"Q. Mrs. Crenshaw, in your case for divorce you allege that the defendant has inflicted grievous bodily injury and mental suffering upon the plaintiff by pursuing such a course of conduct toward her and such treatment of her, existing and persisted in for a period of more than one year immediately preceding the commencement of this action which justly and reasonably is of such a nature and character to destroy the peace of mind and happiness of the plaintiff and to entirely defeat the proper and legitimate objects of marriage and to render the continuance of the marriage relation between the plaintiff and the defendant perpetually unreasonable and intolerable. Is that a fact? A. Yes.
"Q. Will you enumerate to the Court in part what acts the defendant has been guilty of during the past year, past several years, which have a bearing upon this condition? A. Well, the first and worst example, I think of, was the time that he went to Kennewick. He left me with the apartment house to run, and not one person to help me. I had the yard and the stoker and the maid's work and the management, — everything *Page 223 that was done, I did it. Then last year he locked me out of the apartment, — put me out of the apartment, —
"Q. That was in July, was it not? A. Yes, July 12th, — without any clothes, except what I had on my back. And several times when he would find me near the door, or looked as if I wanted to go in, he took hold of me, shoved me across the hall, and once he dragged me up the stairs.
"Q. Dragged you upstairs how many steps? How many flights? How much? A. Well, there are six steps to the landing, and I think there are ten or twelve steps to the next; be the six steps to the landing, and about seven or eight of the other steps. * * *
"Q. (By Mr. Peterson) During the past year has Mr. Crenshaw in his conduct toward you been rough, tough and overbearing? A. Yes.
"Mr. Bunker: Of course that is leading, but go ahead.
"Q. (By Mr. Peterson) Just speak up. A. Yes, it has.
"Q. And when he knocked you down and dragged you up those steps did it leave you any bruises, leave any bruises on you? A. Yes.
"Q. Any black and blue bruises? A. Yes, I had several on my arms, and I thought my spine was broken, injured, but it did get better.
"Q. And did that cause you to feel chagrin and to become nervous and ill?
"Mr. Bunker: Now, — A. Yes. * * *
"Q. (By Mr. Peterson) If his physical contact and combat which you complained of coming from this husband of yours and which you state was inflicted upon your body and mind, how has that affected your body and mind? A. I think that it had a great bearing on my digestive system, so that it is in the condition that it is today.
"Q. Has it caused you to become sick and irritated? A. Yes."
Had objection been made to the first question it perhaps should have been sustained. But no objection was made to it *Page 224 and neither did defendant on cross-examination attempt to develop or elicit the time when the acts complained of were committed or of what they consisted. I think in the absence of any objection this is some proof of the ultimate fact that defendant had inflicted mental suffering upon plaintiff by a course of conduct persisted in for more than one year to meet the requirement of the last paragraph of section 5738, Revised Codes.
Certainly the proof of the specific acts of cruelty was sufficient to meet the first part of the statute. I concede that the husband under the law is the head of the family (and no one is questioning that proposition here) but that does not justify him in knocking his wife down and inflicting black and blue marks on her arms and otherwise intentionally injuring her physically or in threatening to "knock the Jesus out of her."
What was said by this court in Poague v. Poague, 87 Mont. 433,288 P. 454, 455, is applicable here. It was there said: "There is substantial evidence supporting all of the court's findings. Upon this state of facts we are not permitted to disturb the judgment being governed by the oft-repeated rule that this court will not overturn the findings of the trial court unless there is a decided preponderance of evidence against them; when the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings will not be disturbed." To the same effect is Williams v. Williams, 85 Mont. 446,278 P. 1009.
I think the decree awarding to plaintiff a divorce should be affirmed. I concede too that the state has an interest in every marriage and I agree with what this court had to say in Franklin v. Franklin, 40 Mont. 348, 106 P. 353, 26 L.R.A., N.S.., 490, 20 Ann. Cas. 339, quoted from in the majority opinion. Neither do I contend that this court is precluded from considering this case on its merits. But, in my opinion, a case was made out here to come within the rules prescribed by statute for the granting of a divorce.
It is evident to me from the record in this case that the state *Page 225 of Montana, acting through this court, will assume a monstrous undertaking if it endeavors to restore peace, harmony and tranquility in the Crenshaw home and hold these parties together as husband and wife. I do not believe that the public policy of this state as expressed by section 5738 is such that a wife must continue to endure the physical attacks shown to have been made upon plaintiff in this case by her husband without being entitled to a divorce. Also, the state will likely not accomplish its purpose in this case of making the marriage permanent. The natural thing to expect is that plaintiff will immediately institute another action for divorce and, upon the identical evidence here introduced, this court will have to hold that she is entitled to a divorce because both the desertion and the course of conduct amounting to cruelty under the last part of section 5738, Revised Codes, will have continued for more than one year.
I also think the award of alimony was proper and should be sustained. The court followed carefully the procedure which was held proper in Lewis v. Lewis, 109 Mont. 42, 94 P.2d 211, in providing security for the award of $125 per month alimony. The amount of the award is reasonable and it is of no consequence whether plaintiff contributed anything to the purchase of the Crenshaw Apartments or not. The fact stands undisputed that she managed the apartment house property for months at a time when defendant was absent from the state and did much of the work when he was within the state. Most of the money that went toward the payment of the purchase price of the apartment came from earnings from the apartment. Plaintiff as the court found, "has applied herself diligently to the care and management of said apartment house."
The award of $125 per month is but fair and just to plaintiff.
One other point must be mentioned. Were I able to agree with the majority opinion so far as it deals with questions of law, I still would disagree with the ultimate conclusion that the action should be dismissed. If plaintiff is not entitled to a *Page 226 divorce, certainly she is entitled to separate maintenance. The court found and there is plenty of evidence to sustain the finding that defendant deserted plaintiff on July 12, 1944. As a ground for separate maintenance desertion need not exist for any period of time. Secs. 5736, 5739 and 5769, Rev. Codes; Decker v. Decker, 56 Mont. 338, 185 P. 168.
Clearly the record shows plaintiff is entitled to a decree of separate maintenance, and the award of $125 per month is warranted whether plaintiff be given a decree of separate maintenance or a decree of divorce.
Rehearing denied June 24, 1947.