Ryan v. Ryan

• Decision Date: 29 January 1906
• Citation: 84 P. 494,33 Mont. 406
• Parties: RYAN v. RYAN.
• Court: Montana Supreme Court

84 P. 494

33 Mont. 406

RYAN v. RYAN.

Supreme Court of Montana

January 29, 1906

Appeal from District Court, Jefferson County; M. H. Parker, Judge.

Action by Florence E. Ryan against James Ryan. From a judgment for plaintiff, defendant appeals. Reversed.

Milburn J., dissenting in part.

Cowan & Cowan and T. J. Walsh, for appellant.

C. R Stranahan, for respondent.

HOLLOWAY J.

This action was brought to secure a divorce upon the ground of extreme cruelty. The plaintiff prevailed in the district court and the defendant appeals from the judgment.

The only question presented is: Does the complaint state a cause of action? In paragraphs 6, 7, and 8, an attempt is made to charge the defendant with extreme cruelty as defined in Civ Code, § 134, which reads as follows: "Sec. 134. Extreme Cruelty is the infliction, or threat of bodily injury dangerous to life, or the repeated infliction or threat of grievous bodily injury, upon the other party, by one party to the marriage, or the repeated publication of false charges against the chastity of the wife by the husband." The complaint does not attempt to charge the defendant with making threats of inflicting bodily injury, or of publishing false charges against the chastity of plaintiff; so that it must be tested by one of the other definitions given in that section, namely, the infliction of bodily injury dangerous to life, or the repeated infliction of grievous bodily injury. The particular acts of cruelty of which complaint is made consist of defendant's striking, beating, and choking the plaintiff, throwing her violently against the side of a barn throwing her down two steps out of their house, and other like brutal acts. It is repeatedly said that these acts caused plaintiff great bodily and mental pain and suffering; but the complaint does not any where allege that they produced grievous bodily injury or bodily injury dangerous to plaintiff's life, and for this reason appellant contends that the complaint does not state a cause of action.

Prior to 1895, extreme cruelty was a ground for divorce,, but was not defined by statute. The courts were left to frame such definitions as general usage might warrant. In 1885 this court, in Albert v. Albert, 5 Mont. 577, 6 P. 23, 51 Am. Rep. 86, in considering an action for divorce on the ground of extreme cruelty, said: "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." For 10 years that doctrine was apparently accepted as reflecting the opinions of courts; but in 1895, in adopting section 134 of our Civil Code, the Legislature, presumably with full knowledge of the rule announced in the Albert Case, saw fit to change entirely the policy of the law. Extreme cruelty no longer was made to represent the mere indignity suffered by the wife consequent upon her receiving from the husband a blow delivered in anger, but it became from thenceforth such measure of actual physical injury inflicted by one party to the marriage, upon the other, that thereafter it was deemed unsafe for the parties longer to live together, and therefore sufficient in the estimation of the Legislature to warrant a divorce. While under the doctrine announced in the Albert Case, a single blow by the husband delivered in anger against the wife, would doubtless have been held by the courts sufficient provocation for a divorce, the Legislature, being clothed with full power to say upon what terms divorces might be had, took away from the courts the authority theretofore exercised to define extreme cruelty, and, while leaving it in the law as a ground for the annulment of marriage, gave to it a definition which completely changed the theory, which the courts had adopted. In the view of the Legislature, a husband may beat or otherwise maltreat his wife, and even do so in a brutal manner, without giving rise to an action for divorce, provided only that his mistreatment does not produce grievous bodily injury and be repeated, or, if it occurs but once, that it does not produce bodily injury dangerous to life. Under the changed rule, as adopted by the Legislature, grievous bodily injury and bodily injury dangerous to life are made ulimate facts, which must be proved, and, in order to be proved, must be pleaded. Smith v. Smith, 124 Cal. 651, 57 P. 573. While a violent blow might produce bodily injury, the question whether it will produce the grievous bodily injury of the statute, or bodily injury dangerous to life, is one of fact for the trial court or jury to determine from all the evidence in the case, where the question is properly presented by the pleadings.

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