the judgment should have been for the defendant, and the case appears to have been thoroughly tried as to the facts, and it appears very improbable that a new trial would result more favorably to the plaintiff, the judgment will be reversed by the supreme court, and the court below directed to render judgment for defendant.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. The facts are stated in the opinion.

Smith, Winder & Smith, for Appellant.

The conduct should be sufficiently aggravated to produce ill health or bodily pain, though operating primarily upon the mind only, to be regarded as cruelty. (Powelson v. Powelson, 22 Cal. 358; Poor v. Poor, 8 N. H. 307; 29 Am. Dec. 664; Pierce v. Pierce, 3 Pick. 299; 15 Am. Dec. 213.)

Wells, Guthrie & Lee, for Respondent.

The public aspersion of a virtuous wife by her hus band, charging her with unchastity, constitutes such cruelty as will entitle her to a divorce. (Jones v. Jones, 60 Tex. 451; Bahn v. Bahn, 62 Tex. 518; 50 Am. Rep. 539; Williams v. Williams, 67 Tex. 198; Kelly v. Kelly, 18 Nev. 49; 51 Am. Rep. 733; Wheeler v. Wheeler, 53 Iowa, 511; 36 Am. Rep. 240; Allen v. Allen, 31 Mo. 479; Good. man v. Goodman, 26 Mich. 417; Lewis v. Lewis, 5 Mo. 278.) Profane, obscene, and insulting language habitually indulged toward a wife, a person of a sensitive nature and refined feelings, amounts to extreme cruelty. (Bennett v. Bennett, 24 Mich. 483; Goodman v. Goodman, 26 Mich. 417; Wheeler v. Wheeler, 53 Iowa, 515; 36 Am. Rep. 240; Allen v. Allen, 31 Mo. 480; Whitmore v. Whitmore, 49 Mich. 417.) It is cruelty for a husband to call a sensitive and refined wife a bitch. (Warner v. Warner, 54 Mich. 492.) Unjustifiable conduct on the part of the husband, which so grievously wounds the mental feelings of the wife or so utterly destroys her peace of mind

as to impair her health, or endanger her life, or such as utterly destroys the legitimate ends and objects of mat rimony, constitutes extreme cruelty. (Wachholz v. Wachholz, 75 Wis. 377; Avery v. Avery, 33 Kan. 1; Carpenter v. Carpenter, 30 Kan. 712; 46 Am. Rep. 108; Civ. Code, sec. 98.)

VANCLIEF, C.-This is an action for divorce on the ground of extreme cruelty, by the use of vile and offens ive language, without any physical force or violence applied to the person of the plaintiff.

The answer of the defendant denies the cruelty and the use of the language alleged. The court found for the plaintiff, and decreed a divorce and permanent alimony of one hundred dollars per month while she shall remain unmarried, and one thousand dollars for her attorneys' fees; and defendant appeals from the judgment, and from an order denying his motion for a new trial.

The material substance of the findings as to extreme cruelty is as follows:

That, upon occasions when the defendant was intoxicated, he wrongfully and unjustly, and without sufficient provocation to justify him in so doing, called the plaintiff vile names, once called her a "whore," and on sev eral different occasions called her a "damned bitch," and a "damned witch from hell," in the presence and hearing of other people, and thereby inflicting upon her grievous mental suffering, but without injury to her health; that when he called her such vile names she was not without fault, and that she was not uniformly kind to him; that there is reasonable apprehension to believe that such cruel treatment will be continued if a divorce is not granted.

The defendant contends,-1. That these findings as to cruelty do not support the judgment; and 2. That they are not justified by the evidence.

1. As to the sufficiency of the finding, it is to be ob

served that the degree of cruelty which the law recog nizes as a cause of divorce never has been exactly defined. Perhaps as near an approach to an exact definition as is practicable is made by Mr. Bishop, who, admitting the great difficulty of formulating such a definition, thinks the task not impossible, and gives, as his definition, the following:

"Cruelty is such conduct in one of the married parties as, to the reasonable apprehension of the other or in fact, renders cohabitation physically unsafe, to a degree justifying a withdrawal therefrom." (1 Bishop on Marriage and Divorce, 6th ed., sec. 717.)

Yet this expression of the degree of cruelty which may justify a withdrawal from cohabitation seems to leave it quite as indefinite as was the degree which will justify a divorce without aid from this definition; and the learned author seems to admit as much, further on (sec. 740), where, referring to this definition, he says: "By our definition of cruelty, the apprehension of physical danger to the complaining party must, to justify a divorce, have proceeded to a degree justifying a withdrawal from cohabitation.' Now, if this seems indefinite, so is the law. There is no posssibility of measuring the depth of woe or danger thus required, except by the understandings of the men who occupy the bench and the jury-box, enlightened and strengthened by what has been heretofore deemed or adjudged."

Certainly, where the fact upon which the law is to operate is indefinite, the law is necessarily indefinite and uncertain to the same degree; and generally, uncertainty of the law proceeds from uncertainty as to the ultimate matter of fact which forms a part of and a term in every proposition of law. True, it is sometimes uncertain whether a law is mandatory or merely directory or permissive, but much oftener the "uncertainties of the law" arise from uncertainties as to the facts or things commanded, permitted, or prohibited; and so it is with

the fact of cruelty prohibited by the law governing the marriage relation. Since all degrees of cruelty are not prohibited, and the requisite degree to bring it within the prohibition being uncertain, the law prohibiting it must be correspondingly uncertain.

But although the degree of cruelty constituting a ground for divorce may not have been exactly defined, it has been so described by the decisions of courts that it may be sufficiently identified for practical purposes; and although the judicial descriptions of what is and what is not a sufficient degree of cruelty do not reduce the distinction to a line clearly separating the sufficient from the insufficient degrees of cruelty in all possible. cases, they reduce it to a very narrow zone, within which the true line of distinction is to be judicially ascertained or sufficiently approximated, by means of the peculiar circumstances of each case, viewed in the light of "what has been heretofore deemed or adjudged." A great ma jority of the cases, however, will be found to fall within the authoritative descriptions of either the requisite or the insufficient degree of cruelty.

It is contended, however, by counsel for respondent, that extreme cruelty is defined by section 94 of the Civil Code, and that the finding in this case, being in the language of that section, must be sufficient. That sec

tion is as follows:

"Extreme cruelty is the infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage."

If this section is to be considered a proper legal definition of the words "extreme cruelty," as used in section. 92 of the same code, it certainly deprives those words of an essential part of their meaning as used in the books to express a cause of divorce, since it entirely omits the attribute of wrong or injustice. "The infliction of grievous bodily injury or grievous mental suffering" does not imply wrong or injustice, and it may be justi

fiable; whereas the word "cruelty," alone, is always understood as implying wrong or injustice; and the "extreme cruelty" which is a cause of divorce is necessarily wrong, and never justifiable. Therefore, to say that section 94 of the Civil Code was intended as a complete definition of the words "extreme cruelty," as used in section 92, would be to affirm that the mere "inflic tion of grievous mental suffering," though excusable or justifiable, is a cause of divorce, an absurdity not to be attributed to the legislature. The probable object of the legislature, in enacting section 94 of the Civil Code, was to affirm the previous decisions of the supreme court of this state in the cases of Morris v. Morris, 14 Cal. 78, 73 Am. Dec. 615, and Powelson v. Powelson, 22 Cal. 360, to the effect that extreme cruelty may be effected without as well as with physical violence, and thus to settle the law on a point as to which there was thought to be some contrariety of judicial opinion in other states and in England. Surely it was not intended to disturb those decisions; for although they limit the rule that extreme cruelty may be the result of treatment other than that of physical violence to such treatment and conduct as produce bodily harm or ill health, or furnish reasonable apprehension that further cohabitation would endanger the life or physical health of the complaining party, yet they extend the rule quite as far as it has gone elsewhere in the United States or in England.

Although the character of the ill treatment, whether it operates directly upon the body or primarily upon the mind alone, and all the attending circumstances, are to be considered for the purpose of estimating the degree of the cruelty, yet the final test of its sufficiency, as a cause of divorce, must be its actual or reasonably apprehended injurious effect upon the body or health of the complaining party. (1 Bishop on Marriage and Divorce, 6th ed., secs. 732-733b; Morris v. Morris, 14 Cal. 80; 73 Am. Dec. 615; Powelson v. Powelson, 22 Cal. 362.) This