By the Court,
Belknap, J.:
This is an appeal from a judgment of divorce in favor of the husband and against the wife upon the ground of extreme cruelty. Neither the findings of the court nor any statement • of the evidence has been brought here. The appeal is taken from the judgment roll alone, and the principal question presented for consideration is whether the allegations of the complaint are sufficient to support a judgment of divorce. ‘
The complaint, after setting forth the necessary jurisdictional facts, proceeds as follows : “That since the said marriage defendant has been guilty of extreme cruelty towards thi.s plaintiff'; that on the sixth day of July, A. D. 1881, at the city of San Francisco, defendant falsely charged plaintiff with committing adultery,'and frequently since said date has accused him of conjugal infidelity, and with living and cohabiting with other women, and has since then constantly circulated among their mutual friends charges of the same character. Plaintiff' further avers that since the said sixth day of July, A. D. 1881, defendant has been in the habit of villifying, slandering and abusing this plaintiff, and applying to him the most opprobrious epithets, and has frequently threatened to abandon plaintiff'; that by reason of the acts of the defendant hereinbefore set forth the life of the plaintiff' has been rendered unendurable and miserable, so that he has been forced to cease cohabiting and living with defendant. ’ ’
In considering extreme cruelty as a ground of divorce, courts have cautiously given it negative, rather than affirmative, definitions. The difficulty in giving an affirmative definition arises from the fact that cruelty is a relative term; its- existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached [56]*56in each case must depend upon its own particular facts. “We do not divorce savages and barbarians because they are'such to each other,” said the supreme court of Pennsylvania, in Richards v. Richards. “We can exercise no sound judgment in such cases (divorce cases) without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules.” (37 Penn. 228.)
In the great case of Evans v. Evans, 1 Hagg. Cons. 35, Lord Stowell laid down certain principles which have been universally approved, lie said : “ What is cruelty ? In the present case it is hardly necessary for me to define it, because the facts here complained of are such as fall within the most restricted definition of cruelty ; they affect not only the comfort, but they affect the health and even the life of the party. * * * What merely wounds the mental feelings is in few cases to be admitted, when not accompanied with bodily iujury, either actual or menaced. Mere austerity of temper, petulance of manner, 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. * * * In the older cases of this sort, which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait until the hurt is actually done; but the apprehension must be reasonable ; it must not be an apprehension arising merely [57]*57from an exquisite and. diseased sensibility of the mind.”
Adopting the principle that the element of danger to life, limb, or health, or the reasonable apprehension of such danger, must exist in order to constitute legal cruelty, can it be affirmed as matter of law that the plaintiff may not have established a cause of action under the complaint? If the couduct of which the defendant confesses to have been guilty, and which she admits drove the plaintiff' from his home, could have resulted in injury to health, then the judgment must be allowed to stand. The result which the law is intended to prevent may be accomplished without any physical violence. The health of a sensitive wife may be as effectually destroyed by systematic abuse, and humiliating insults and annoyances, as by blows and batteries. It would be a reproach to the law, as is said by Mr. Bishop in his work on Marriage and Divorce, to say that a husband may not by personal violence ruin the health of his wife or kill her, and yet allow him to produce the same result in some other way. (Section 733.)
Upon this subject the Pennsylvania court of common pleas employed the following language : “A husband may, by a course of humiliating insults and annoyances, practiced in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. Would the wife have no remedy in such circumstances, under our divorce laws, because actual or threatened personal violence formed no element in such cruelty ? The answer to this question seems free from difficulty when the subject is considered with reference to the principles on which the divorce for cruelty is predicated. The courts intervene to dissolve the marriage bond under this head, for the conservation of the life or health óf the wife, endangered by the treatment of the husband. The cruelty is judged from its effects; not solely from the means by which those effects are produced. To hold absolutely that, if a husband avoids positive or threatened personal violence, the wife has no legal protection against any [58]*58means short of these which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given to the wrong-doer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife ; and if it has been such as to affect or injure either, to regard it as true legal cruelty. This doctrine seems to have been the view of Sir IT. Jenner Fust, in Dysart v. Dysart, where he deduces from what Sir William Scott ruled in Evans v. Evans, that if austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they do amount to legal cruelty. This idea, expressed axiomatically, would be no less than the assertion of this principle: that, whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife, it is legal cruelty.” (Butler v. Butler, 1 Pars. (Pa.) Sel. Cas. 344.)
We scarcely need the aid of judicial authority for the enforcement of the truth that there may be cruelty without personal violence, and that such cruelty, working upon the mind, may affect the health. Wretchedness of mind can hardly fail to have this result.
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By the Court,
Belknap, J.:
This is an appeal from a judgment of divorce in favor of the husband and against the wife upon the ground of extreme cruelty. Neither the findings of the court nor any statement • of the evidence has been brought here. The appeal is taken from the judgment roll alone, and the principal question presented for consideration is whether the allegations of the complaint are sufficient to support a judgment of divorce. ‘
The complaint, after setting forth the necessary jurisdictional facts, proceeds as follows : “That since the said marriage defendant has been guilty of extreme cruelty towards thi.s plaintiff'; that on the sixth day of July, A. D. 1881, at the city of San Francisco, defendant falsely charged plaintiff with committing adultery,'and frequently since said date has accused him of conjugal infidelity, and with living and cohabiting with other women, and has since then constantly circulated among their mutual friends charges of the same character. Plaintiff' further avers that since the said sixth day of July, A. D. 1881, defendant has been in the habit of villifying, slandering and abusing this plaintiff, and applying to him the most opprobrious epithets, and has frequently threatened to abandon plaintiff'; that by reason of the acts of the defendant hereinbefore set forth the life of the plaintiff' has been rendered unendurable and miserable, so that he has been forced to cease cohabiting and living with defendant. ’ ’
In considering extreme cruelty as a ground of divorce, courts have cautiously given it negative, rather than affirmative, definitions. The difficulty in giving an affirmative definition arises from the fact that cruelty is a relative term; its- existence frequently depends upon the character and refinement of the parties, and the conclusion to be reached [56]*56in each case must depend upon its own particular facts. “We do not divorce savages and barbarians because they are'such to each other,” said the supreme court of Pennsylvania, in Richards v. Richards. “We can exercise no sound judgment in such cases (divorce cases) without studying the acts complained of in connection with the character of the parties, and for this we want the common sense of the jury rather than fixed legal rules.” (37 Penn. 228.)
In the great case of Evans v. Evans, 1 Hagg. Cons. 35, Lord Stowell laid down certain principles which have been universally approved, lie said : “ What is cruelty ? In the present case it is hardly necessary for me to define it, because the facts here complained of are such as fall within the most restricted definition of cruelty ; they affect not only the comfort, but they affect the health and even the life of the party. * * * What merely wounds the mental feelings is in few cases to be admitted, when not accompanied with bodily iujury, either actual or menaced. Mere austerity of temper, petulance of manner, 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. * * * In the older cases of this sort, which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait until the hurt is actually done; but the apprehension must be reasonable ; it must not be an apprehension arising merely [57]*57from an exquisite and. diseased sensibility of the mind.”
Adopting the principle that the element of danger to life, limb, or health, or the reasonable apprehension of such danger, must exist in order to constitute legal cruelty, can it be affirmed as matter of law that the plaintiff may not have established a cause of action under the complaint? If the couduct of which the defendant confesses to have been guilty, and which she admits drove the plaintiff' from his home, could have resulted in injury to health, then the judgment must be allowed to stand. The result which the law is intended to prevent may be accomplished without any physical violence. The health of a sensitive wife may be as effectually destroyed by systematic abuse, and humiliating insults and annoyances, as by blows and batteries. It would be a reproach to the law, as is said by Mr. Bishop in his work on Marriage and Divorce, to say that a husband may not by personal violence ruin the health of his wife or kill her, and yet allow him to produce the same result in some other way. (Section 733.)
Upon this subject the Pennsylvania court of common pleas employed the following language : “A husband may, by a course of humiliating insults and annoyances, practiced in the various forms which ingenious malice could readily devise, eventually destroy the life or health of his wife, although such conduct may be unaccompanied by violence, positive or threatened. Would the wife have no remedy in such circumstances, under our divorce laws, because actual or threatened personal violence formed no element in such cruelty ? The answer to this question seems free from difficulty when the subject is considered with reference to the principles on which the divorce for cruelty is predicated. The courts intervene to dissolve the marriage bond under this head, for the conservation of the life or health óf the wife, endangered by the treatment of the husband. The cruelty is judged from its effects; not solely from the means by which those effects are produced. To hold absolutely that, if a husband avoids positive or threatened personal violence, the wife has no legal protection against any [58]*58means short of these which he may resort to, and which may destroy her life or health, is to invite such a system of infliction by the indemnity given to the wrong-doer. The more rational application of the doctrine of cruelty is to consider a course of marital unkindness with reference to the effect it must necessarily produce on the life or health of the wife ; and if it has been such as to affect or injure either, to regard it as true legal cruelty. This doctrine seems to have been the view of Sir IT. Jenner Fust, in Dysart v. Dysart, where he deduces from what Sir William Scott ruled in Evans v. Evans, that if austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they do amount to legal cruelty. This idea, expressed axiomatically, would be no less than the assertion of this principle: that, whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife, it is legal cruelty.” (Butler v. Butler, 1 Pars. (Pa.) Sel. Cas. 344.)
We scarcely need the aid of judicial authority for the enforcement of the truth that there may be cruelty without personal violence, and that such cruelty, working upon the mind, may affect the health. Wretchedness of mind can hardly fail to have this result. In causes of divorce upon the ground of cruelty, wives appear as complainants more frequently than husbands. This arises from the fact that the husband is generally physically stronger than the wife, and less susceptible to the effects of ill-treatment than she. He too may, in fact, frequently restrain the wife’s violence, by the exercise of marital power in the domestic forum, without the aid of courts. But the law does not encourage him to measure strength with her. “ The fact that the husband can defend himself is the very grievance. It is because he may be tempted, in defending himself, to retaliate upon his wife that the court is bound to interfere, and to decree a judicial separation when such acts are proved. When a man marries an ill-tempered woman he must put up with her ill-humor ; but the moment she lifts [59]*59her hand against him the court must interfere, for, if it does not, how can it answer the husband if he should subsequently allege that he had been forced to use violence in self-defense.” (Forth v. Forth, 36 Law J. 122, cited in Browning on M. and D. 111.)
The statute contemplates cases in which the husband may be the complaining party, and in such cases expressly affords him the same relief which it extends to a complaining wife. Although he is generally physically stronger than she, he may be the weaker party. And cases may arise in which the wife may cause the* husband to suffer as seriously, mentally and physically, as she would were he the' aggressor. To reverse this judgment would be to say, as matter of law, that no such cases could exist. Under the allegations of the complaint a case of extreme cruelty could have been proven. Whether such a ease was, in fact, proven, cannot be reviewed upon this appeal, because of appellant’s failure to make the evidence a part of the record. The general principle of law is that when matter is necessary to be proven in order to support the judgment, it will be presumed to have been proven, in the absence of an affirmative showing to the contrary. And this principle is always applicable in an appellate court to causes presented, as this case has been, upon the judgment roll alone.
Objection is made to the verification of the complaint. Each allegation of the complaint is made positively, and nothing is stated upon information or belief. The verification follows the form prescribed by statute, omitting the words “ except as to those matters which are therein stated on his information or belief, and, as to those matters, he believes it to be true.” “If a party, who in his answer has stated nothing on information and belief, thinks it advisable to swear that he believes such statement to be true, he doubtless has a right to do so ; but if in such a case he confines himself to swearing that his answer is true to his knowledge, he not only complies with the requirements of the Code, but avoids what, to say the least of it, is a harmless absurdity.” (Kinkaid v. Kipp, 1 Duer, 692.)
J udgment affirmed.