
    BYRON E. HARTWELL, Appellant, v. MARGARET J. HARTWELL, Respondent.
    No. 1372.
    (69 Pac. 265.)
    Divorce: Defenses: Cruelty: Misconduct of Plaintiff Bar to Recovery.
    Where in an action for divorce on the ground of cruelty, the evidence of defendant, not denied by plaintiff, showed that plaintiff had frequently struck defendant when intoxicated, the divorce was properly denied, though cruelty as alleged had been committed by defendant.
    
      (Decided July 2, 1902.)
    Appeal from the Third District Court, Summit County.— Son» 8. W. Stewart, Judge.
    . Action for divorce for cruelty. From a decree in favor of defendant, the plaintiff appealed.
    AeKIRMED.
    
      Messrs. Snyder, Wester nett, Snyder & Wight for appellant.
    The court erred in excluding and refusing to consider the evidence offered by plaintiff tending to prove a general course of ill-treatment and showing the general character, disposition and behavior of the defendant.
    The rule is abundantly supported by authorities that the general course of conduct of defendant may be shown under a complaint which alleges several specific acts of cruelty and contains also a general.allegation setting forth a general course of abuse and ill-treatment. 7 Ency. PI. and Pr., p. 79 et seq; Briggs v.' Briggs, 20 Mich. 34; Sylvis v. Sylvis, 11 Colo. 319; 17 Pac. 912; Reese v. Reese, 23 Ala. 785; Marts v. Marks, 56 Minn. 264, 57.N. W. 651; Donald v. Donald, 21 Ela. 571; Myriek v. Myrick, 67 Ga. 771; Holy-oke v. Holyoke, 78 Me. 404, 6 Atl. 827, 829.
    
      Messrs. Richards & Ferry for respondent.
    The errors assigned by counsel for the appellant, upon the admission and rejection of certain testimony, and which are contended for in appellant’s brief, are not, at the most, prejudicial errors. According to -the- authorities cited by counsel a decree of divorce in actions like the case at bar, must rest upon specific acts of cruelty alleged, and if these specific acts have wholly failed to be proven by the evidence, counsel can not complain against the rejection of evidence which may have shown other acts of cruelty not specifically alleged. 7 Ency. PI. and Pr., p. 79.
   BASKIN, J.

This is an action for divorce on the alleged grounds of cruel treatment of the plaintiff by the defendant. The divorce was denied by the lower court, and the plaintiff appeals.

. The answer denies all of the allegations of the complaint, except that “the plaintiff and defendant are husband and' wife, and that they intermarried at Salt Lake City, Utah, on or about the eighteenth day of January, 1872, and that the plaintiff for more than one year last past is and has been an actual and bona fide resident of Summit county, in the State of Utah.” The plaintiff, in his complaint, in addition, to the general and specific charges of cruelty of the defendant, alleges that he “has always been kind and considerate to her,” and that he has always been sober, etc. The ninth assignment, of error is that “the‘court erred in entering and signing the findings and decree in this action in favor of defendant.” In this connection it is contended by appellant’s counsel that the evidence adduced by plaintiff, which was not disputed, was sufficient to justify a decree in favor of the plaintiff, and that, in' order to render a decree in favor of defendant, that evidence, must have been totally ignored. If this were conceded, the objection is overcome by evidence of the defendant which is not-contradicted. ' After the defendant had been examined as a witness on her own behalf, the following occurred in her cross-examination by plaintiff’s attorney: “Q. Did Byron Hartwell ever in the world strike you? A. I needn’t an-' swer that. That is not in the evidence. I shall never go against my husband any more than I have to. He is the-father of my children. I have been married thirty years, and I can’t do it. Q. Just answer my question. I want to know what reason you had for any such fear as you stated you -bad. Had be ever struck you ? ■ A. Do I bave to answer that question? • The Court: Yes, you may answer it. A. Yes, sir; be has struck me. Q. When? A. I haven’t any dates. Q. More than once? A. Yes, sir; lotq «of times. Q. Name us one time, then? A. Ob, I don’t want to go into things I don’t bave to. I don’t bave to go into-things over my past life. Please, your honor, don’t bave anything up more than has to. I bave two lovely girls. Q.’ How long ago was it ? A. When be used to come under the influence of liquor and that. Q. It was when be was drunk, then, if be ever did it ? He never did it any time when he was sober, did be? A. No.” After the defendant bad' testified, the plaintiff, who bad before been a witness in chief' on his own behalf, was, in rebuttal, again examined by bis-attorney, and while be was interrogated in respect to and contradicted other portions of the defendant’s testimony, be was not interrogated in respect to, and did not deny, any of the statements made by the defendant in answer to the particular questions hereinbefore set out, asked her by plaintiff’s attorney on cross-examination. The misconduct of the wife, under some circumstances, may prevent her from obtaining a divorce, but is no excuse for the personal violence of her' husband. Gross cruelty upon the part of the husband, when shown in an action by him,'will bar bis right to a divorce,' however great the fault of the wife may bave been. The gross conduct of the plaintiff, stated by bis wife, and which the plaintiff, though he had an opportunity to do so, did not deny, barred any recovery by the plaintiff, and would have done so even if it had been admitted or shown that the wife had committed all of the alleged acts of cruelty charged in the complaint. In this view of the case the other assignments of error are of no consequence.

It is ordered that the judgment of the lower court be affirmed, with costs.

MINER, O. J., and BARTOH, J., concur.  