#### Klaus, Respondent, vs. Klaus, Appellant.

*February 22*

March *14, 1916.*

*Divorce: Oruel and inhuman treatment: Evidence: Sufficiency: Pleading: Particularity: Variance: Amendment to conform to proof: Final division of property.*

1. Findings as to the cruel and inhuman treatment of a wife by her husband, upon which a judgment of divorce was based, are *held*to be sustained by the evidence.

2. Where the conduct complained of constitutes a continued course of ill-treatment, particularity in the allegations as to time and. place becomes unimportant and generally impracticable and should not be required.

3. Where a good cause of action within the jurisdiction of the court was established on the trial and all controversies in respect thereto were fully and fairly tried without objection, a variance between the allegations of the complaint and the evidence is not material, and the complaint may be amended to correspond with the facts proved or, on appeal, may be deemed to have been so amended if necessary to sustain the judgment.

4. A final division of property in a divorce action, restoring to the wife, subject to a charge of $800 in favor of the husband, real estate of the value of $6,000 which she had owned before marriage and the parties had lived upon but which had been conveyed by her to the husband, who paid off a mortgage and made improvements; awarding to the wife the household furniture except furnishings for one bedroom; and vesting title to the remainder of the property, valued at $3,156, in the husband,- — is *held*to have been just and proper.

Appeal from a judgment of the circuit court for Racine county: E. B. BeldeN, Circuit Judge.

*Affirmed.*

*550This is an action for divorce on tbe ground of cruel and inhuman treatment.

The plaintiff and defendant were married about the month of January, 1891, and from the time of their marriage to the commencement of this action they have continuously resided in the city of Racine. The issue of the marriage is one daughter, Josephine, who is now twenty-four years of age and able to care for herself. By a former marriage the plaintiff had three children, two boys and a girl. These children lived with the parties and contributed all of their earnings toward the maintenance of the home up to the time they became twenty-two years of age. Thereafter the two sons paid $5 per week for board and the daughter paid $3.50 per week for board while residing at the home of the , parties. At the time of marriage the plaintiff owned about two acres of land in the city of Racine upon which was situated a brick veneer house. At this time there was a $600 mortgage on this property and the plaintiff was otherwise indebted in the sum of $100. The defendant paid this $J00. During the year 1905, Douglas avenue, the street plaintiff’s property was located on, was paved and an assessment levied against her property. The defendant refused'to pay this assessment unless he was given a lien on the land, so the plaintiff gave him a quitclaim deed of the premises.

The complaint alleges generally cruel and inhuman treatment, and specifies that about ten years ago the defendant assaulted the plaintiff and knocked her against a building in the yard, causing the plaintiff to become unconscious; that the defendant left their home various times for several days at a time, and that on the 25th day of January, 1915, he deserted plaintiff and refused to return to their home; that defendant on numerous occasions criticised the plaintiff in a cruel manner for procuring improper food for the family, and on one occasion took some of the food from their home and exhibited it to the workmen at the place where he was *551employed, for tbe purpose of bumiliating and degrading tbe plaintiff. Tbe plaintiff further alleges that sbe maintained upon tbe land adjoining tbe bouse a large market garden wbicb produced sufficient income to provide the family with groceries, and that tbe defendant is tbe owner of personal property of tbe value of $4,000 besides what remains of tbe real estate be obtained from the-'plaintiff, of tbe value of $6,000.

Tbe court found that tbe plaintiff was entitled to a divorce from tbe bonds of matrimony on tbe ground that soon after tbe marriage defendant began to practice toward tbe plaintiff a course of cruel and inhuman treatment without cause, justification, or excuse. Tbe acts of cruelty found by tbe court were that on numerous occasions defendant struck and kicked tbe plaintiff, used vile and opprobrious epithets toward her, wrongfully accused her of procuring improper food for tbe family and of being improvident in not saving money, and that defendant otherwise caused her great humiliation; that on tbe 25th day of January, 1915, tbe defendant left bis home and refuses to return; that all of said conduct of defendant has been largely without fault on the part of tbe plaintiff and has resulted in seriously affecting her health and renders it unsafe for her- to longer live with tbe defendant as bis wife. Tbe court also found that tbe value of tbe real estate owned by tbe defendant was $6,000 and tbe personal property, mortgages, money, and other securities of tbe value of $3,156, making a total of $9,156, beside tbe household furniture.

Tbe judgment dissolves tbe bonds of matrimony between tbe parties and provides:

“That as and for a final division of all tbe property of tbe parties to this action and in lieu of all court costs, permanent alimony, and further allowance of attorney’s fees, there be and hereby is awarded to tbe plaintiff, *Gertrude Klaus,*free and clear from all claims and demands of tbe defendant, *Clemens*Klaus, except as hereinafter stated, tbe following *552described real and personal property, to wit[description of real estate], “and the title to said premises be and the same hereby is absolutely vested in fee simple in the plaintiff, *Gertrude Klaus j*subject, however, to the payment by said plaintiff, *Gertrude Klaus,*to the defendant, *Clemens Klaus,*of the sum of $800” [specifications of payment] ; “that in addition to the real estate above awarded to the plaintiff there is hereby awarded to the plaintiff all of the household furniture of the parties to this action, including the piano and stoves, excepting only one bedroom set, with bedding, together with sufficient chairs to properly furnish a bedroom, is hereby awarded to the defendant.”

It is further provided in the judgment “that all of the rest, residue, and remainder of the property of the parties to this action be and the same is vested in the defendant, *Clemens Klaus,*free and clear of all claims and demands of the plaintiff, *Gertrude Klaus/’*From such judgment this appeal is talcen.

Eor the appellant there was a brief by *Heels & Krenzhe,*and oral argument by *Charles Krenzhe.*

*For*the respondent there was a brief by *Thompson, Myers & Kearney,*and oral argument by *Peter J. Myers.*

SiebecKeb, J.

The appellant assails the findings of the court upon the ground that the evidence does not sustain the court’s findings of fact. We are satisfied upon the record that the evidence abundantly supports the facts found. The argument is made that the evidence wholly fails to show any specific times and occasions when defendant was guilty of treating plaintiff in a cruel and inhuman manner. The court’s conclusion that the defendant ill-treated plaintiff throughout the period of their married life and that such treatment was cruel is not against the preponderance of the evidence and hence cannot be disturbed.

The point is made that the allegations and the proof are too general and indefinite to constitute a legal cause of action. There were no objections made at the trial upon the ground *553that the pleadings were insufficient nor was objection to the evidence offered. It also appears that defendant was fully prepared to defend the action and that the action has been fully and fairly tried. An inspection of the complaint shows that it alleges a good cause of action under the statutes. In addition to the evidence showing a general and continuous course of defendant’s ill-treatment of plaintiff, it also appears that he, on one occasion about two years ago, before he left their home in January, 1915, assaulted, beat, and injured her. It is claimed that no such specific allegation is made in the complaint and hence the alleged cause of action must fail. Where the conduct complained of constitutes a continued course of ill-treatment, particularity of time and place becomes unimportant and generally impracticable and should not be required. *Smedley v. Smedley,*30 Ala. 714; *Cole v. Cole,*23 Iowa, 433. The objection that the evidence and allegations of the complaint are at variance is of no merit. This is aptly answered in the opinion of the court in *Bieri v. Fonger,*139 Wis. 150, 120 N. W. 862, “. . . if a good cause of action is established upon a trial and all controversies in reference to the matter are fully tried without objection and such cause is within the jurisdiction of the court and might have been but was not fully pleaded or was not the particular cause of action the pleader had in mind at the outset, though the'facts are fairly stated, the complaint may be amended to correspond with the cause proved either before or after verdict, saving the substantial rights of the adverse party or, if need be to sustain the judgment, it will, on appeal, be deemed amended in accordance with the judgment.” See, also, *Matthews v. Baraboo,*39 Wis. 674; *Monk v. Hurlburt,*151 Wis. 41, 138 N. W. 59; *Hopkins v. C., M. & St. P. R. Co.*128 Wis. 403, 107 N. W. 330; *Kleimenhagen v. Dixon,*122 Wis. 526, 100 N. W. 826; *Aschermann v. Philip Best B. Co.*45 Wis. 262; ch. 219, Laws 1915, and sec. 2669a, Stats. 1915.

An examination of the facts of the case convinces us that the *554trial court properly restored to plaintiff tbe part of tbe real estate wbicb defendant bad received from tbe plaintiff and tbat tbe final division and distribution of defendant’s estate between tbe parties is just and proper in tbe light of all tbe facts and circumstances of tbe case.

*By the Gourt.*— Tbe judgment appealed from is affirmed. Tbe respondent to recover costs on this appeal.