Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.

The parties were married in San Francisco in 1855. This action was commenced by the wife to obtain a divorce, in June, 1873. The complaint alleged several acts of personal violence to have been committed by the husband, within one year before the action was commenced. The parties had five children: Bose, aged seventeen; Bichard, aged fifteen; Julia, aged twelve; Frank, aged ten, and Louis, aged eight years. The wife’s testimony showed that the husband had a violent temper, and that in October, 1872, she took some money out of the trunk to pay what was due on life insurances of the parties, when he became angry, and the next day she asked for money to buy a dinner, and he said he had no money. That she heard the money rattle in his pocket, and put her hand in his pocket to get it, when he struck her with his hand, and slapped her on the side of the head, and threw her violently on the floor. That in December, 1872, the defendant called her a child-killer in the presence of the children, and accused her of having been guilty of an abortion, and of wanting to sleep with one Jacob. That the wife took hold of him and begged him not to call her so, when he kicked her severely, and threw her down on the floor. That the husband frequently, in the presence of the children, called her a child-killer. That in November, 1872, while the defendant was whipping the youngest boy, the wife desired him to desist, when he struck her a violent blow on the side of the head. That in May, 1873, the wife purchased food for a fine dinner, on credit, and the husband and she began quarrelling, and called each other names, and the next morning he took hold of her, and threw her out of the house. That on the 5th of June the husband, in the presence of the children, called the wife a b—ch, and said the children would have had more brothers and sisters if the wife had not committed a crime. That at another time he exposed his person in the presence of his wife and her married sister, and made obscene remarks. In short, the wife’s testimony showed an almost incessant scene of quarrelling during the year. She admitted that she sometimes called ^tim names, such as dog, when he was in the midst of his bursts of passion. Her evidence tended to show that the husband was obscene in his language, and created nuisances about the house, and accused her of being crazy,

The testimony of Bose, the eldest daughter, showed that the plaintiff had been out of health, nervous and debilitated, during the last year. She corroborated her mother in relation to the scene when the latter tried to take money from the defendant’s pocket, and he struck her and threw her on the floor. She also corroborated her mother in relation to the defendant calling her names; such as child-killer, and witnessed several acts of violence sworn to by her mother. Her testimony also showed that the house of the parties had been an almost constant scene of quarrels during the year.

. Barbara Brewer, the sister of the plaintiff, corroborated the latter about the defendant’s indecent exposure of his person, and his obscene language. The defendant, in his testimony, denied some of the acts of violence, and admitted others, but, in relation to the latter, claimed that they were committed either in self defense, or when the wife was violent and called him names, in efforts to stop her. He claimed that his wife was partially crazy, and that she deserved sometimes to be punished for her acts of alleged violence in words and manner.

The Court below found the defendant guilty of cruelty, and decreed a divorce. The defendant moved for a new trial. The Court below denied the new trial, and in doing so, delivered the following opinion:

■ “The defendant moves for a new trial on the pleadings and bill of exceptions filed, which are hereby made a part of this statement.

“I have given to this case, on this motion, much considera-

tion, but am unable to reach any different conclusion from that heretofore arrived at. While upon paper, it may not appear that plaintiff had any great reason to complain on the score of mental anguish, yet the appearance of the parties in Court, in connection with the evidence offered, entirely satisfied my mind that she was a keen sufferer by reason of the premeditated, persistent and willful system of persecution and annoyance adopted by the defendant towards her. The defendant is a strong, muscular, hearty man in the meridian of animal power, while the plaintiff is a weak, frail woman and very evidently of an exceedingly nervous temperament. From all the circumstances I am satisfied that, while she used some harsh language towards him, yet there was no mental anguish caused on his part thereby, but that his language to, and treatment of her not only caused her mental but also physical suffering, and that to remand her to his control and companionship would be virtually consigning her to a premature death or to insanity.”

The defendant appealed.

The other facts are stated in the opinion.