White v. White

¶1— I concur in the views expressed by Mr. Justice McFarland, but would decide the first contention on the broad ground that the cruelty referred to in section 98 of the Civil Code, and which makes the offending party the deserter, is not necessarily of the same character or grade as the “ extreme cruelty ” defined in section 94 as one of the grounds of divorce. Section 98 reads as follows: “ Departure or absence of one party from the family dwelling-place, caused by cruelty or threats of bodily harm, from which danger would be reasonably apprehended from the other, is not desertion by the absent party, but it is desertion by the other party.” This section, say the code commissioners, was “intended to settle a question discussed as doubtful in 1 Bishop on Marriage and Divorce, sections 787, 791, and 794.” If a wife quits her husband’s house under probable cause to apprehend personal violence from him, or if he, by reason of acts of cruelty, drives her from the home, it is the same as if he had thrown her out of doors. If the acts of cruelty show an intention on his part to drive her from him,he is held responsible for the natural and probable consequences of such acts, and it is as much desertion on bis part as if he had without cause left her, intending to desert her. Unless section 98 provides for a grade of cruelty other than that defined in section 94, it is entirely superfluous. The two sections would provide for one cause of action only, under two different names.