¶1I 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.
¶2The 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 husband may heap all sorts of wrongs upon a wife, short of beating or threats of personal violence; that his conduct toward her may be a continuous series of acts of *267insult and contumely; that he may continuously call her vile names, and unjustly and falsely charge her, in the presence of others, with indecent acts and base practices, so that she is ashamed to look her neighbors in the face, and unable to find aught in life but misery, so that the common voice of mankind would call him cruel beyond all patience, and yet, as long as her physical constitution can bear up under the strain, she can get no redress. She must be a wreck before she can be rescued.
¶3This doctrine makes legal cruelty depend, not on the misconduct of the husband, but on the endurance of the wife; not on the guilt of the wrong-doer, but on the vitality of the victim. The anguish of the mind must have eaten through the flesh and exhibited itself in bodily disease before there can be any legal evidence of cruelty. But some women, like some men, have inherited from sturdy ancestors physical constitutions so robust, with bone and blood, and muscle and nerve, and heart and lungs, so charged with vitality, that the woes of a Lear would not wear out the machinery or obstruct the currents of healthy physical life. Must such a woman suffer on forever, and only the weak who faint at a gentle reproach be relieved ?
¶4There is not, in my opinion, any necessity whatever to follow Morris v. Morris and Poivelson v. Powelsonas authorities; for, since they were decided, the statute law has been changed, and changed, I think, for the express purpose of obliterating those decisions. At that time the statute merely made “ extreme cruelty in either party ” a cause of divorce, without any attempt to define or describe it. (Hittell’s General Laws, par, 2416.) But the code has added the following: “ Extreme cruelty is the infliction of grievous bodily injury, or grievous menial suffering, upon the other by one party to the marriage.” (Civ. Code, sec. 94.) Here “ bodily injury” and “mental suffering” are mentioned as two entirely distinct things, and each, by itself, as constituting ex*268treme cruelty. If the legislature had merely meant bodily injury caused by mental suffering, there would have been no occasion for the legislation at all, because that was included clearly in the decisions in the Morris and Powelson cases. It is entirely evident, therefore, to my mind, that, both in a philologic and historical view, tlpe language of section 94 means that the infliction of grievous mental anguish alone constitutes legal cruelty.
¶5It is said that the definition of extreme cruelty in section 94 is defective. Of course, there cannot be a perfect definition of such a thing. The qualities of human actions cannot be designated by accurate lines, as fields can be by fences. Can grievous bodily injury be accurately defined? It is said that the infliction of grievous suffering does not imply wrong or injustice. But section 94 is dealing with extreme cruelty, and uses that phrase. And does not “ extreme cruelty” itself imply wrong and injustice? And while extreme cruelty of either kind cannot, in the very nature of things, be accurately defined, there is often misconduct so far outside of and beyond that produced by the ordinary weaknesses and passions of men that the common judgment of mankind pronounces it extremely cruel. Every case where a divorce is sought on this ground must depend upon its own particular facts; and a correct decision must depend—as most cases depend—upon the sound sense and judgment of juries and courts. Some divorces are no doubt obtained upon insufficient proof; but it must be remembered that one reason why more divorces are granted than formerly is, because formerly wives had no remedy for many outrageous wrongs.
¶6A petition for a rehearing having been filed, the following opinions were rendered thereon on the 1st of September, 1890: —