Albert v. Albert , 5 Mont. 577 ( 1885 )

Wade, 0. J.

This is an action for divorce. The cause alleged is extreme cruelty. The proof tended to show that the defendant had on divers occasions heat and whipped his wife, and that the wife had accused her husband of adultery, and had published the accusation among her neighbors.

Among others, the court gave the jury the following instruction, upon which the error complained of is assigned, viz.:

“ That if the jury find from the evidence that though defendant did strike plaintiff more than one time, still this does not necessarily establish the charge. If the plaintiff, by her own conduct toward the defendant, provoked him to strike her, the jury may consider this fact in connection with such charge; and0if by her own acts she provoked defendant to assault and strike her, in such case the act of plaintiff is a legal excuse to defendant in treating her in a harsher manner than if plaintiff had been free from fault; and. in such case it would require stronger evidence to establish such charge of extreme cruelty than if plaintiff had been free from fault. ”

We think one beating or whipping of a wife by her husband sufficient to establish the charge of extreme cruelty. Such an act could not be accidental or by mistake; and if not, the probabilities would be that it might be repeated again and again, subjecting the wife to constant fear and rendering her life miserable. It is extremely cruel for a husband to beat or whip his wife, even once. Mere words can never afford any provocation or excuse for such an act; no words can justify an assault; A husband is not authorized to whip his wife because she calls him hard names, nor can he graduate the force of his chastisement by the vigor of the language used. A husband may not raise his hand against bis wife, except in absolute, defense of his life, or to prevent his receiving great bodily harm; and then he can only use force sufficent to protect himself from the danger.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.