157 N.C. 161 | N.C. | 1911
Lead Opinion
This is an action for an absolute divorce brought by the husband against the wife. The seventh issue was as follows: “7. Hid 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 con
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.”
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, 123 N. C., 174; Porter v. White, 128 N. C., 45, and cases cited therein.
The same rule as to intensity of proof .applies also where a party seeks the reformation of a written instrument. Ely v. Early, 94 N. C., 1; Kornegay v. Everett, 99 N. C., 30; Hemphill v. Hemphill, ib., 436; Warehouse Co. v. Ozment, 132 N. C., 846. Also, the same intensity of proof is required to prove the terms of a lost will; and there are a few other instances. But they are all cases in which, formerly, the facts would have been found by the chancellor. Ferrall v. Broadway, 95 N. C., 551. Such intensity of proof is not required as to the issues in divorce, which is an action at law. Certainly, it has never been required in this State.
It is true that in Kinney v. Kinney, 149 N. C., 321, the judge charged the jury that the evidence of adultery must be “strong, convincing, and conclusive”; but notwithstanding this erroneous charge, the jury found the'issue “Yes,” and therefore there was no appeal by the plaintiff which would have presented the question' as to the correctness of that part of the charge.
The plaintiff contends, however, that inasmuch as the jury found “Yes” in response to the eighth issue, “Did the plaintiff,
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, 94 N. C., 532, the law now recognizes tbe validity, under certain conditions, of such a deed by providing, in Code, sec. 1831, now Revisal, 2116, “tbat every woman living separate from her husband . . . under a deed of separation, executed by said husband and wife and registered . . . shall be deemed and held ... a free trader,” etc. Sparks v. Sparks, supra, has been cited as authority in Smith v. King, 107 N. C., 273; Cram v. Cram, 116 N. C., 294. Besides, under Code, sec. 1292, now Revisal, 1567, the wife who has been abandoned or deserted by her husband can sue for a support for herself and children without asking for a divorce. Cram v. Cram, 116 N. C., 294; Skittletharpe v. Skittletharpe, 130 N. C., 72; Bidwell v. Bidwell, 139 N. C., 409.
The remedy which the statute gives to a wife abandoned or deserted by her husband is-alimony and divorce a mensa 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, 80 N. C., 316, and cases prior thereto.
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.
Concurrence Opinion
concurring in the result: I concur in the decision awarding a new trial in this case for the error in the charge of the court on the degree of, proof required to establish the seventh issue, and it may be that there are no facts amounting to legal evidence tending to show that plaintiff maliciously turned defendant out of doors. I do not agree to the position, •however, nor do I think that it has the support of any autho,r-