292 P. 463 | Cal. Ct. App. | 1920
Plaintiff appeals from a decree whereby she was denied a divorce from her husband, the defendant. *772
In her complaint, among other things, plaintiff alleged "that during the latter part of February, 1916, the said defendant willfully and without reasonable or just cause, assaulted and struck this plaintiff, and assaulted and struck a daughter of this plaintiff, and abused the said plaintiff, and used toward her profane and insulting names, in the presence of her children"; all of which allegations are denied by defendant in his answer. Upon these issues the court found as follows: "The defendant in the latter part of February, 1916, did slap the plaintiff, and did slap the daughter of the plaintiff. This was in the course of an altercation between the defendant on one side and the plaintiff and her daughter on the other side, in which none of them was without fault. The defendant did not upon this occasion use profane and insulting names in the presence of the plaintiff." Appellant's sole contention is that the evidence did not justify this finding, and, further, if justified by the evidence, plaintiff was entitled to a decree of divorce thereon.
[1] Conceding that defendant did slap his wife, as shown by her testimony, but denied by defendant, the act, as appears from ample evidence, was committed in an altercation provoked by the wife, who, without just cause, attempted to eject him from a room in his residence, at which time she made a furious attack upon him by striking, kicking, and biting. In effect, while the court found that defendant, on the occasion referred to, slapped his wife, the act was provoked by her unwarranted attack and conduct.
Findings should be construed most strongly in support of the judgment based thereon, and, notwithstanding defendant was guilty of the act as found, it is not made to appear that it caused plaintiff the slightest physical pain or mental suffering, in the absence of which showing it cannot be said that defendant's single wrongful act, committed under the circumstances stated, entitles her to a reversal of the case.
There is no merit in the points presented; hence the judgment is affirmed.
*773Conrey, P. J., and James, J., concurred.