72 S.E. 861 | N.C. | 1911
The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. This is an action for an absolute divorce brought by the husband against the wife. The seventh issue was as follows: "7. Did the defendant commit adultery with one George B. Gatling, as alleged in the complaint?" On this issue the judge charged: "The plaintiff must show such adulterous intercourse by evidence which is clear, cogent, and convincing. If you find from the evidence which is clear, cogent, and convincing that the (163) defendant committed adultery with George B. Gatling, your answer to the seventh issue will be `Yes.' If not, your answer to the seventh issue will be `No.'"
The exception of the plaintiff to this charge must be sustained. In criminal cases the burden is upon the plaintiff to prove the charge "beyond a reasonable doubt," or "to the satisfaction of the jury." But in civil cases the rule is that the party upon whom lies the burden of proof is called upon to establish his allegation merely "by the preponderance of the evidence." *131
There are some exceptions to this in matters of an equitable nature, as to which the evidence must be "clear, strong, and convincing." For instance, when a party asserts and endeavors to prove by parol that a deed which is absolute on its face was in fact a mortgage. 8 Ency. Ev., 714;Watkins v. Williams,
The same rule as to intensity of proof applies also where a party seeks the reformation of a written instrument. Ely v. Early,
It is true that in Kinney v. Kinney,
The plaintiff contends, however, that inasmuch as the jury found "Yes" in response to the eighth issue, "Did the plaintiff, before the time of the alleged adultery, maliciously turn the defendant out of doors?" that the error in the instruction as to the intensity of (164) the proof on the seventh issue was harmless error. But this proposition is neither good law nor good morals. There is no legal or moral reason why a woman who has been abandoned by her husband shall be privileged to commit adultery any more than if she were a widow or a single woman. It is true that prior to the act of 1872, now Revisal, 1651 (2), such was deemed the law in this State (Moss v.Moss,
Nor is an agreement for separation, as formerly, ipso facto void because "against law and public policy." As Smith, C. J., pointed out in Sparks v. Sparks,
(165) Our older authorities therefore, which made the adultery of the wife committed after desertion or abandonment by her husband no ground for divorce, are without the reason which gave support to such rulings. They have now as little support in law as they ever had in morals.
The remedy which the statute gives to a wife abandoned or deserted by her husband is alimony and divorce a mesna et thoro. It does not privilege either one to commit adultery. If she does, the husband is entitled to a divorce. This was the ecclesiastical law. Nelson on Divorce, sec. 430. His wrong does not authorize her to commit a greater one. She can go back to live with him after his desertion; but he cannot be required to live with her after her adultery. The American decisions are conflicting, being based upon statutes of varying tenor.
Besides, in this case, the husband placed the wife in a sanitarium for the cure of her habit of drunkenness, and paid her or for her benefit, regularly, $50 per month for her support under the agreement of separation. He also paid her $400 per year rent for a home worth $5,000, which he had given her, and supported the children himself. She was not therefore subjected to temptation by the necessity of procuring a support, which was the reason for the rulings of the Court in Tew v. Tew,
It may be that on another trial the jury will again find the wife was not guilty, but the plaintiff is entitled to a new trial to the end that the issue may be submitted under proper instructions as to the intensity of proof required to establish the charge.
Error.
ALLEN, J., concurs in result. *133
