Waldron

I dissent. It is possible that the judgment in this case might be reversed for want of sufficient proof of facts; but I dissent in toto from the views expressed in the opinion adopted by the majority of the court on the subject of extreme cruelty.

The opinion goes back to the old cases of Morris v. Morris, 14 Cal. 80 , 73 Am. Dec. 615 , and Powelson v. Powelson, 22 Cal. 362 , and adopts their doctrine, that no conduct of a husband toward a wife constitutes extreme cruelty unless it injures bodily health or endangers physical safety. It treats a woman as having only a bodily structure and physical organs, like one of the lower animals, and utterly ignores her mental, moral, and emotional nature. Those cases, following musty decisions in the past, when women had few civil immunities which man was bound to respect, were determined before the present statutory law of California upon the subject and at a time when human rights, as human rights, were but dimly recognized, even in these free United States, and when extreme, and in some cases wholesale, violation of personal liberty was common against all except one class, viz., white male citizens. The theory of those cases is, that a…

A rehearing is denied. The petition in this case is discourteous and disrespectful in some of its *269 language. However individual members of the court may regard such conduct on the part of attorneys, as affecting them personally, it is an offense against the court that cannot be allowed to pass without rebuke. An attorney who has a sufficient understanding of his high calling, and the respect due to the court, as well as the respect due to his profession, should not so far forget himself as to use such language. Because of the important question presented, we have carefully considered the points made, notwithstanding the manner in which they were presented in the petition. But having done this, out of consideration for the better feelings of counsel who filed it, as well as to prevent a recurrence of a like offense, the objectionable language should not be perpetuated as a part of the records of the court. It is therefore ordered that the petition for a rehearing be and the same is hereby stricken from the files.

Thornton, J., Fox, J., and Sharpstein, J., concurred.

This is an action for divorce on the ground of extreme cruelty, by the use of vile and offensive 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 several 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 wdthout 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;…

I did not participate in the decision of this case, owing to want of opportunity to examine it -within the time allowed for a decision. Since the petition for rehearing, I have considered it carefully, and I am unable to concur in the judgment or the order refusing a rehearing. I think section 94 of the Civil Code defines extreme cruelty, and that by such definition it consists of either, — 1. The infliction of grievous bodily injury; or 2. The infliction of grievous mental suffering. This definition'was, I think, intended by the legislature to be complete, and this conclusion is not invalidated by wliat must be conceded to be true, viz., that the acts or -words causing the mental suffering or bodily injury must be not only intended but unjustifiable. These qualities of the acts of cruelty are sufficiently implied in the word “infliction.” In this view, the finding of the superior court comes up to the law, *270 and nothing more can be required. The testimony, in my opinion, is sufficient to support the finding. It is possible that the application of the epithets testified to, by a man to his wife, in the presence of third parties, might not cause her grievous mental suffering,…