Klaus v. Klaus
156 N.W. 963
Wis.
1916
Check Treatment
SiebecKeb, J.

Thе appellant assails the findings of the court upon the ground that the evidence does not sustain the court’s findings of fact. We are satisfied upon the record that the evidence abundаntly supports the facts found. The argument is made that the evidence wholly fails to show any specific times and occasions ‍‌​​‌​​‌​​​‌​​‌​​​‌​‌‌​​​​‌​‌‌​‌​‌​​​​​‌​​‌‌‌​‌‌‌‍when defendant was guilty of treating plaintiff in a cruel and inhuman mannеr. The court’s conclusion that the defendant ill-treated plaintiff throughout the period of their married life and that such treatment was cruel is not against the preponderance of the evidence and hence cannot be disturbed.

The point is mаde that the allegations and the proof are too general and indefinite to constitute ‍‌​​‌​​‌​​​‌​​‌​​​‌​‌‌​​​​‌​‌‌​‌​‌​​​​​‌​​‌‌‌​‌‌‌‍a legal cause of action. There were no objections made at the trial uрon the ground *553that the pleadings were insufficient nor was objection to the evidence offered. It also appears that defendant was fully prepared to defend the action and that the action has been fully and fairly tried. An inspection оf the complaint shows that it alleges a good cause of action under the statutes. In addition to the evidence showing а general and continuous course of defendant’s ill-treatmеnt of plaintiff, it also appears that ‍‌​​‌​​‌​​​‌​​‌​​​‌​‌‌​​​​‌​‌‌​‌​‌​​​​​‌​​‌‌‌​‌‌‌‍he, on one occasion about two years ago, before he left their home in January, 1915, assaulted, beat, and injured her. It is claimed that no such specific allegation is made in the complaint and hence the alleged cause of action must fail. Where thе conduct complained of constitutes a continued course of ill-treatment, particularity of time and placе becomes unimportant and generally impracticablе and should not be required. Smedley v. Smedley, 30 Ala. 714; Cole v. Cole, 23 Iowa, 433. The objection that the evidence and allegations of the complaint are at varianсe ‍‌​​‌​​‌​​​‌​​‌​​​‌​‌‌​​​​‌​‌‌​‌​‌​​​​​‌​​‌‌‌​‌‌‌‍is of no merit. This is aptly answered in the opinion of the court in Bieri v. Fonger, 139 Wis. 150, 120 N. W. 862, “. . . if a good cause of action is established upon a triаl and all controversies in reference to the matter are fully tried without objection and such cause is within the jurisdiction of the court and might have been but was not fully pleaded or was not the particular cause of action the pleader had in mind at the ‍‌​​‌​​‌​​​‌​​‌​​​‌​‌‌​​​​‌​‌‌​‌​‌​​​​​‌​​‌‌‌​‌‌‌‍outset, though the'facts are fairly stated, the complaint may be amended to correspond with the cause рroved either before or after verdict, saving the substantial rights of the adverse party or, if need be to sustain the judgment, it will, on appeal, be deemed amended in accordancе with the judgment.” See, also, Matthews v. Baraboo, 39 Wis. 674; Monk v. Hurlburt, 151 Wis. 41, 138 N. W. 59; Hopkins v. C., M. & St. P. R. Co. 128 Wis. 403, 107 N. W. 330; Kleimenhagen v. Dixon, 122 Wis. 526, 100 N. W. 826; Aschermann v. Philip Best B. Co. 45 Wis. 262; ch. 219, Laws 1915, and sec. 2669a, Stats. 1915.

An examination of the facts of the сase convinces us that the *554trial court properly restоred to plaintiff tbe part of tbe real estate wbicb defendant bad received from tbe plaintiff and tbat tbe final division and distributiоn of defendant’s estate between tbe parties is just and prоper in tbe light of all tbe facts and circumstances of tbe сase.

By the Gourt. — Tbe judgment appealed from is affirmed. Tbe respondent to recover costs on this appeal.