Rose v. Rose

Van Fleet, J.

Action for divorce on the ground of extreme cruelty and habitual intemperance.

The decree was in favor of plaintiff, granting her a divorce on both grounds, and awarding her the larger share of the community property. Defendant appeals from the judgment and an order denying him a new trial.

A careful review of the record discloses no substantial merit in the points urged in behalf of appellant.

The objection that the complaint is insufficient in its statement of the cause of action for intemperance is untenable. Assuming that it would be obnoxious to a special demurrer on the ground of uncertainty, no demurrer was interposed, and, in its absence, the pleading cannot be held bad. (Reading v. Reading, 96 Cal. 4 .)

Nor is there any merit whatsoever in the point that the finding as to the habitual intoxication of defendant is unsupported by the evidence. Whatever may be said as to the apparent preponderance of the evidence on that issue, as disclosed by the record, it presents a very *344 sharp and substantial conflict, and leaves no room for the claim that there was not evidence to sustain the view expressed in the finding of the court below.

The declarations of the wife made to and in the presence of her husband and the witness, as to acts of ill-treatment and cruelty toward her by her husband, and the latter’s conduct and declarations in response thereto, was proper evidence on the issue of cruelty. (1 Rice on Evidence, 424.)

The court did not err in admitting, on the issue as to the character of the property, the paper signed by defendant, in which he offered to divide the property, and described it as community property. It was admitted solely on the question as to whether the property was community or separate, and for this purpose it was proper as a declaration by the defendant, even conceding that the paper is to be regarded as an offer of compromise. The declaration as to the community character of the property was not essential to the purposes of the compromise, and is, therefore, not to be regarded as .a concession made for that purpose. While, therefore, it would not be competent to admit an offer of compromise as such, the declaration therein of facts involved in the controversy which are not mere concessions made for the purpose of such offer, but are statements of independent facts, are admissible against the party making them.

The rule is thus stated by Mr. Rice: “It is never the intention of the law to shut out the truth, but to repel any inference which may arise from a proposition made, not with the design to admit the existence of a fact, but merely to buy one’s peace. If an admission, however, is made because it is a fact, the evidence to prove is competent, whatever motive may have prompted to the declaration. But, if the party admits a particular item in an account, or any other fact, meaning to make the admission as being true, this is good evidence, although the object of the conversation was to compromise an existing controversy.” (1 Rice on Evidence, 435.)

*345 The several other rulings on evidence complained of need not be discussed in detail. We have examined them, and are satisfied that they involve no error.

The complaint made as to the inequitable division of the property between the parties would appear, from all the evidence presented, to possess, possibly, some just foundation in fact, if the discretion rested primarily with us, since, to our minds, the defendant would seem to have been treated, perhaps, a little harshly by the court below. But it is a question committed to the justice and discretion of that court, whose opportunity to judge of the equities by reason of seeing and hearing the witnesses is superior to our own, and whose determination, of the question we are not at liberty to disturb, except for a palpable abuse,, which certainly the record before us does not enable us to declare.

The judgment and order are affirmed.

Harrison, J., and Garoutte, J. concurred.