| Cal. | Jul 1, 1862
Field, C. J. and Cope, J. concurring.
This is an action for a divorce, on the grounds of habitual intemperance and of extreme cruelty. On the trial, the Court gave the following charge: “ Habitual intemperance is not, as is claimed by plaintiff, such customary use to excess of intoxicating liquors as shall render the habit permanent, and at times unfit one for business ; but it must be such an addiction thereto as shall completely disqualify the party from attending to his business avocations.” This charge was too stringent. The idea conveyed by it to the jury must have been that the habit of drinking to excess must be of such a character as to render a party at all times incapable of attending to business. This is not necessary. If there is a fixed habit of drinking to excess to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance— although the person may at intervals be in a condition to attend to his business affairs.
As to the ground of extreme cruelty, the Court, after stating that differences between husband and wife incident to human nature, occasioning temporary estrangements and strifes, and sometimes accompanied by violence, are not a sufficient ground for divorce, gave the following charge : “ The acts must be persistent, and the cruelty must be so extreme in its nature that in itself it furnishes an apprehension that the continuance of the cohabitation would be attended with bodily harm to the wife.” This charge, we think, also was too strong. Acts of cruelty such as are specified need not be persistent, need not become a fixed habit, before relief and safety can be had by a divorce.
Judgment reversed, and cause remanded for a new trial.