The objection that the two causes of action are not separately stated in the complaint, but are mixed together in one count, is not a ground of demurrer, but such a fault is to be corrected by a motion to make the pleading more definite and certain by separating and distinctly stating the different causes of action. (Pomeroy, Rem. Rem. Rights, sec. 447; Bliss, Code Pleadings, sec. 412.)
Whether there is sufficient evidence to support the finding that the defendant has been guilty of extreme cruelty, is a question upon which there has been considerable doubt in my mind, and it is not without hesitation that I conclude there is. The same as in any other case coming before an appellate court where it is claimed that the evidence is insufficient to support the findings or verdict, the point before us is not whether, upon the whole evidence, it is correct, but *Page 215 whether there is any substantial evidence to support it; that is, whether, when the decree is in favor of the plaintiff, he has proved such a case as would have made a non-suit improper. If there is — if there is a substantial conflict in the evidence — then the duty and responsibility of finding the facts from the evidence devolve upon the trial court, and constitute a question concerning which this court has nothing to do, even though we may feel that upon the whole evidence we should have come to a different conclusion.
The evidence upon the plaintiff's part shows that she and defendant quite frequently had disagreements and quarrels concerning his habits of drinking and gambling, of which she accused him, and on account of which she threatened to leave him if he did not reform. At such times, when angered, he often told her that if she did he would kill her, and sometimes that he would kill her, their infant child and himself. He also became quite jealous of her, as she claims, and, as the court presumptively found, without any cause, and he accused her often of improper conduct with other men. According to her version, his conduct was certainly very unjustifiable on the night when he refused to permit her to get their infant child as they passed, on their way home, her mother's house, where it had been left earlier in the evening, and compelled her to remain in the buggy and return home without the child, under threats of "blowing her brains out." Her evidence is that after getting home he pushed her into the house, locked the door and searched for a pistol, certainly for the purpose of intimidating her, if not of using it. That she was under some apprehension that he might use it some time is shown by her having previously removed it beyond his reach. It may be that he would not have used it, and that he never had any intention of doing so, but at the same time the contrary is possible. At any rate, a husband indulging in such acts and language cannot complain very much if he is taken seriously. Unless it is clear that they were mere idle threats, courts are hardly justified in experimenting to ascertain whether they were or not, for the experiment might be a disastrous one for the wife. In addition to this apprehended danger, she alleged, and proved by her own and her mother's testimony, that his conduct had affected *Page 216 her health, and the court found that it had rendered her life unendurable.
Under these circumstances, while I consider the case, particularly in view of the defendant's testimony, a weak one, I cannot say that there is not substantial evidence to support it.
I therefore concur in affirming the judgment and order.