Opinion
6 Div. 422.
October 8, 1959.
Appeal from the Circuit Court, Jefferson County, Geo. Lewis Bailes, J.
Hiram Dodd, Birmingham, for appellant.
A bill for divorce must be construed most strongly against the pleader. Rambo v. Rambo, 245 Ala. 98, 16 So.2d 4. It must conform to the statute. Code 1940, Tit. 34, §§ 20, 22, 23. It should allege a discontinuance of marital cohabitation. Hudson v. Hudson, 204 Ala. 75, 85 So. 282.
Sam L. Reames, Birmingham, for appellee.
The bill conforms to the statutes controlling requisites of bills for divorce. There is no requirement that there be allegation of separation when the ground for divorce is cruelty. Code 1940, Tit. 34, §§ 22, 23, 28; Chamberlain v. Chamberlain, 245 Ala. 105, 16 So.2d 8.
This is an appeal from a decree in equity overruling the demurrer of Hazel Shaddix (appellant), to the bill of complaint filed by Jack Shaddix (appellee), for a decree of divorce under § 22, Title 34, Code of 1940, 1955 Cumulative Pocket Part, which in pertinent part reads as follows:
"In favor of either party to the marriage when the other has committed actual violence on his or her person, attended with danger to life or health, or when from his or her conduct there is reasonable apprehension of such violence."
The only question for decision is whether the allegations of the bill as against demurrer are sufficient to state a ground for divorce under the statute.
The allegations are as follows:
"4. The complainant alleges that the respondent is a woman of violent disposition, who quite frequently flies into a rage without provocation on his part, and attacks him and tries to injure him and kill him, and that on October 6, 1958, without any provocation on his part she fired a gun at him several times and hit him with one bullet which entered his chest and remains there. Complainant is afraid that should he continue to live with her his life and health would be endangered, and that it is best for all concerned that they should be divorced."
There is no need to allege that the parties are separated when the ground for the action is that of cruelty or apprehension of cruelty. Chamberlain v. Chamberlain, 245 Ala. 105, 16 So.2d 8.
We consider that the allegations of the complaint are in substantial compliance with the requirements of the statute. Smith v. Smith, 261 Ala. 204, 73 So.2d 538.
Accordingly it is our judgment that the court acted correctly in overruling the demurrer to the bill of complaint.
Affirmed.
LAWSON, SIMPSON and MERRILL, JJ., concur.