Miller v. Miller , 54 Nev. 44 ( 1931 )

Rehearing granted.

ON REHEARING June 17, 1932.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

OPINION In an opinion filed in this cause on October 19, 1931, a decree of divorce in favor of respondent, plaintiff in the court below, was reversed as to her cause of action for willful desertion, but no disposition was made of plaintiff's cause of action for extreme cruelty, except by inference. Miller v. Miller, 54 Nev. 44, 3 P.2d 1069. Afterwards a rehearing was ordered by the court, and the rehearing has been had.

1, 2. Upon this further consideration of the case we adhere to the view that the issue of willful desertion present in this action is res judicata by reason of the Illinois judgment pleaded as an affirmative defense. In Illinois, as in Nevada, it is held that when the same specific acts have been adjudged in a former suit and the same fact or facts are again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied upon, will be conclusive upon the parties in the later suit, without regard to whether the causes of action are the same in both suits. Hoffman v. Hoffman, 246 Ill. App. 60; Silverman v. Silverman, 52 Nev. 152,283 P. 593. Applying this rule to the instant case, plaintiff should not be permitted to relitigate in this jurisdiction by seeking a different remedy based upon the same facts pleaded and relied upon in her Illinois suit for extreme and repeated cruelty.

3. The complaint alleges, in substance, that the defendant went to the home of the parents of the plaintiff, where she and her child were then residing, and used to her violent, abusive and threatening language and violently seized their child and attempted to carry it away by force, nearly causing serious physical injury and put plaintiff in great bodily fear for herself and child. Plaintiff further alleged that in December, 1927, and on numerous occasions defendant willfully and maliciously harassed and annoyed plaintiff and put her in fear of serious physical injury by calling her to the telephone and using violent, abusive and threatening language, often making threats of bodily injury and sometimes even threatening her life and that such conduct of the defendant caused plaintiff to suffer extreme mental anguish, put her in fear of receiving serious bodily injury at the hands of defendant and threatened to and did seriously impair plaintiff's health and rendered it unsafe and improper for plaintiff ever to live and cohabit with defendant. It will be observed that the gravamen of plaintiff's cause of action for extreme cruelty is based on great bodily fear for plaintiff and their child resulting in the impairment of plaintiff's health. The charge of cruel conduct to the child may be dismissed with the statement that if defendant maltreated the child solely for the purpose of giving the mother pain, resulting in the impairment of her health, he was guilty of such an act as justifies a decree in favor of the plaintiff. 19 C.J., sec. 90, pp. 50, 51.

4. The only testimony tending in the least to support the charge of cruelty is that the acts of the defendant made her nervous. This is not sufficient. If the evidence showed that the acts of the defendant produced such a nervous condition as to result in the impairment of her health, we would affirm the judgment. There being no such showing, the judgment must be reversed, and it is so ordered.