*1 SPRING TERM, 1967. 607 Day. Hutchins

ant was induced to select it requirements to meet approval or Housing Public Administration is immaterial. If suitable for the contemplated use, the selection subject thereof is not to success- ful challenge by searching the motives either or of defendant Public Housing Administration. West, Clark’s v. 268 N.C. Cf. 151 S.E. 2d 5.

With alleged reference to the second cause of action: Defend- ant’s exercise of the option, if not properly authorized at a duly meeting constituted of the Commission, is ratified defendant’s pleadings position Assuming this action. the Commission could set aside unauthorized action or previously rescind authorized action, the internal affairs functioning of the Commission are subject challenge by plaintiffs. Carringer Alverson, Cf. N.C. 118 S.E. 2d 408. It unnecessary is pass upon Judge whether Mallard erred rulings of his striking with reference portions of the amended complaint. In our view, complaint the amended fails to state facts sufficient to including constitute cause of action either or exclud- ing allegations. exercising these Accordingly, juris- our supervisory (N. diction IV, 10), C. Const. Art. we consider Sec. the case complaint entirety demurrer ore terns to the amended in its had lodged Court; and, been in this considered, so such demurrer necessarily This ruling, course, sustained. of includes an affirm- Judge sustaining ance of Hall’s order the demurrer ore tenus to the complaint portions amended exclusive of the previously stricken therefrom.

Affirmed.

LOUISE G. HUTCHINS v. RUSSELL V. DAY.

(Filed March, 1967.) 1. Seduction 6—§ seduction, plaintiff In to maintain a civil action for order must by promise by decep- show tion, was induced intercourse or artifice, enticement or other and when evidence discloses by plaintiff, voluntarily first was consented act intercourse inducement, knowingly, maxim, without volenti non injuria applies, and nonsuit entered. fit Marriage— 2. Breach of Promise marriage by already support A a man married will not promises marriage, subsequent action for breach made basis of such an to his divorce action. IN COURT. THE SUPREME *2 3. Same— date, marriage promise required a definite It a of embrace not that justifies by jury finding being the of a it sufficient the evidence parties marriage engagement, to of one of the of an existence promise. person is a breach of another definite 4. Same— marriage show a valid contract of held sufficient to Plaintiff’s evidence in and a in this breach into State entered notwithstanding nonsuit, State, precluding also evidence that would marriage finding promise permit in of was made another state a that recognize of action. not such cause which does Same; 20— Courts § 5. recognizing in a a of is made state Where the promise, plaintiff may of of maintain cause breach marriage, of of and de- here for therefore of action breach cause promises allegations of exclu- fendant’s up sively in other sets a valid and strike such state defense motions to allegations denied. such

Higsins concurring Lake, J.J., part dissenting part, and in and to vote as of nonsuit to both causes of action. affirm the J., at Appeal plaintiff Johnston, June 1966 Civil Session County Court, argued Superior docketed and Fall at of Guileoed No. 1966 as 703. Term, this civil action the defendant instituted

Plaintiff resulting from seduction damages allegedly and breach of marry. to that she came to work tends show as Plaintiff’s evidence County age twenty- in Guilford at the School

teacher Sumner graduation college. Defendant, a married man years upon two age principal. was the Plaintiff and defendant years forty-nine secretly area, other the Greensboro and within began dating each began spending affair weekends in they motels, an and weeks a few per week for some years. two more times four seeing each other 1959) (summer position the defendant lost his be- time At that another having an affair with one his teachers, cause he year then went Alaska for a The defendant and Long. Coleen he remained until the end of California, where the school returned year gone to had also plaintiff

Meanwhile, relationship. their continued years seven for some the defendant testified that plaintiff

The divorce, which occurred when he obtained their spoke improve wanted finan- stated then The defendant in 1962. plain- and in got married, condition before cial tiff had become pregnant, offered the excuse that he was too old to have an illegitimate children and that way child was no start their marriage. plaintiff The had abortion early 1964.

From 1960 to plaintiff together defendant traveled from California to North Carolina on several In trips. year the plaintiff going told he was Miss Coleen Long, and invited plaintiff to attend wedding guest! as a plaintiff wedding attended the passed the bride she her, threw red ink on her and other wedding members of the party. testified that she had never had sexual relations with except man the defendant.

At the close of evidence the motion of defendant for judgment as of nonsuit was allowed, appealed.

Alston, Alexander, plaintiff Pell & Pell appellant. (In Day Bussell propria persona) V. appellee. for defendant J. While an action for civil seduction be main- Pless, tained to marry, proof without the mere of intercourse, more, is and no not sufficient to warrant recovery. Volenti non fit injuria. v. 183 Davis, Hardin N.C. 110 S.E. 602. This Latin phrase consenting is translated to mean “To injury no is done. thing A person complain who consents to cannot of it as an in- jury.” Upon plaintiff’s testimony spending she started weekends days a motel within a with defendant few after she had him, met sexual but claims she did not have relations with him until several is, October, on kind, weekends of 10 Davis, supra, in Hardin v. It is further said in- intercourse or other will by deception, duced enticement artifice suffice, how- bring any herself within fails to ever. The above re- claim promised as there is no that defendant quirements marry to relations, although prior the first intimate he did did her to live not intend to with his wife did her more. The not love coming be without plaintiff cannot read evidence of the the con- voluntarily knowingly consented, clusion that to the defendant. was herself There no quickly surrendered element enjoyed pleasures that she she testified sexual deceit and her. offered sustaining motion judg- was defendant’s correct

The court charging count civil seduction nonsuit on the and it ment as of hereby affirmed. upon breach of contract of mar- action based

As cause of to the riage: person or who, to a made

“Any promise THE COURT. IN SUPREME 610 v. living, absolutely husband or wife knowledge has a rise to action even inception in its and is ineffectual void performed until after the death though such a is not to Likewise, husband wife. such a promissor’s promisee’s or of the person expectation a married of a promise is void when pending opposed suit. contracts are by force of Such divorce in themselves a violation of morality public policy; they un- persons morally who make them are duty, and the marital 2d, 12 Am. Jur. Breach of Promise, tie.” faithful 7, page 708. Sec. disability is held that after the removed “a re-

But it is also promise after the dissolution by the defendant newal existing while the was made will sustain marriage relation 2d, 12 Am. Jur. Breach of Promise, its breach.” an action for Sec. Haddix, Ky. 292, 620; 254 71 S.W. 2d (1964). Sanctuary Elmore v. 7 Ferguson 316; Jackson, 153 Atl. Cary, R.I. 248 S.W. 51 Lustig, Edelbaum v. (Tex. App.); Supp. 250 N.Y. Ct. Civ. 561 Marriage and City Ct.); Keezer, Divorce, (New 90, p. Sec. York 1946). Anderson, (3rd See Strickland 186 S.C. 482, Ed. S.E. testimony of the following excerpts plaintiff, from the taken her, tend to show that favorable to light most disability of the defendant after the had been renewed prom me and he promised “He removed: got even before he promised divorce and He periodically. ised — Carolina, North periodically done across the This was too. after *4 * * * way all the across. That was California, country, spring, and he told here me that the drove back when spring was in we drove back I believe it final. was divorce spring periodically, of 1962. He told me in the North Carolina it would up about it. Sometimes come we talked every day, but not learned occasionally. When I first that he had a month once divorced him was in North wife had Carolina or his divorce gotten a me, kept telling what he told and he That is 1962. spring of

in the he had the divorce we wouldn’t be following that year theme * * * marry He was free to me bills. paid his until he married got married somebody the time he up until September two-year period, whole he did During years later. two else marry periodically. said this can’t me. He I going was that a week. The matter hot mean once day. I do or1 the'date give you a month.” once approximately up came specific “If con- in no terms. need be A contract re- clearly indicate that parties declarations duct what means is immaterial as to engaged, it gard themselves Lee, have arrived in that Family state.” North Carolina Law, Yol.' 1, 2, page marriage requires 10. While a contract of an agreement' § parties meeting between and a of the minds, human nature is courtship such that a does any pattern not follow formal and, as stated, above and terms of conduct endearment parties between the jury be sufficient to a justify finding the existence engagement. party “If refuses to either perform, legal the only remedy of party the other is an action for the breach * * * marriage and the to another is, of course, a Lee, supra, page definite breach.”

Construing light evidence most favorable to plaintiff, finding it is sufficient to justify promised that defendant to marry plaintiff after defendant’s disability was removed. In his further the defendant entering defense denied into a con- plaintiff,

tract of with the but asserted if that such con- in California, (Civil tract made it was whose statute Code of 43.4) California, provides that fraudulent promise to marry does § of action for damages. rise to cause Another California (Ibid 43.6) pleaded by provides statute that a breach of wrong. is not an actionable He further pleaded * * * arose any of action outside of that cause North Carolina being both plaintiff and defendant and, the nonresidents of the State Carolina, cannot maintain her of North defendant in In addition North the courts of Carolina. the defendant pleads the provides 1-87.1, which provisions G.S. dismissal of an action arising out of the State nonresidents. portions foregoing moved to strike the of the fur- relating the facts thereto. This answer and

ther denied and the plaintiff excepted. excerpts testimony quoted are sufficient finding jury that was a there valid sustain a contract of parties in Carolina; North marriage entered into it was upon Carolina; findings such in North she breached would be damages in the courts of this to recover State. entitled present the defendant is entitled hand, the other

On de- there was no contract of the effect fense to North contract were made it was in Carolina; the State of permit its does which, statutes, under cause of thereof. the breach action for *5 a number of cases in which we find the courts research

In our similar to the two California a statute having statutes have States recovery where the contract breach to allow occurred refused legislation. O’Conner v. having Johnson, 74 F. in a State 2d Macken, 76; 58 C.A. 136 P. 2d 116; 370; v. Thome Albert Supp. IN THE SUPREME COURT. v. McGrath, 16, Supp. 278 F. 2d 165 F. 461, A. B. v. D.,C. 36 F. Supp. 85, Milburn, Supp. Calcin v. F. 946, Gaines v. Poindexter, Supp. 155 F.

While we have been unable to find a decision on the exact con- verse of this case, we think that analogy Shaw Lee, 258 N.C. applicable. 129 S.E. 2d In that case the was a resident of North injured Carolina and was in Virginia riding while guest as a of her husband operated automobile owned and by him. She sued her husband and the driver of the other vehicle involved. The court sustained a demurrer, saying alleged right Virginia action to recover injuries for sustained there; Virginia right does not action spouse to one to re- damages injuries cover other person to the negligently upholding ruling inflicted. In of the lower court, Rodman, J., quoted with approval Dawson, from Dawson v. (Ala.) 138 So. 414 only “The true doctrine is that each sovereignty, nation, state or power finally has the exclusive determine and declare what acts — of omissions in the conduct of one to another whether strangers, or sustain relations to each other recog- which the law nizes, parent child, wife, husband and master and servant, — impose liability shall or the like for the consequent injury, sovereignty impute and the courts of no other can a damni- an act omission which fying quality to afforded no cause of ac- transpired.” tion where it quoted Gray Gray, also 94 A.L.R. 1411;

Justice Rodman spouses law rule that cannot sue each “'The common other is maintaining an action, but is a prohibition more than a sub creation of a cause of prevents rule which action as be stantive spouses.” tween the right to recover and the amount concluded that “Claimant’s

He injuries personal must be determined may be recovered which injuries were sustained. If no where by the law of State injured party has none which can there, the right action exists elsewhere.” be enforced in a which de- a contract made State party

It follows be allowed to recover breach should not recovery for its nied forum State, occurred in the although breach State, another it is made should where in the State unenforceable a contract alleged Thus courts of this State. be enforceable the defend- in the State marriage contract allegations to strike the motion liable. The been not have ant would properly denied. was therefore by offered cor-. for seduction- was on the nonsuit *6 Rodman v. Mish. breach of

rect, but the for nonsuit for hereby is

Reversed. Higgusts concurring part dissenting in and in J.J., part, and LAKE, judgment of vote to affirm nonsuit as to both causes of actions. RODMAN, Wife, OLZIE C. CLARK RODMAN and MAVIS L. RODMAN v. MISH, CRAIG, ALLIGOOD, ALBERT CHARLIE J. D. MRS. R. F. VENTERS, AUBREY PIPPIN and MITCHELL WOOTEN.

(Filed March, 1967.)

1. Cemeteries 3—§ grave The heirs aof decedent at whose monument has been erected maintain an action for monument, the removal of the though they fee, pleading even are owners of their should relationship allege their so the decedent as to disclose that are action, allegation maintain entitled to heirs mere insufficient, decedent heirs pleading demurrer ore teiius to their Supreme in lower written court demurrer filed in the must sustained. Court Pleadings 21.1—§ essentia] Where demurrer sustained of an want aver- ment, pleader the action should not be until dismissed has had an opportunity 1-131. amend. G.S.

Appeal by defendants, other than Mitchell Wooten, from Hub- Term of Beaufoet bard, J., Superior at October Court. are the of a lot in plaintiffs owners Riverside subdivision town Washington, from the

some three miles North Carolina. again in 1957 and 1962 has no The deed to them exceptions, res- or restrictions. ervations trespassing upon allege that the defendants are

They their prop- erecting process of thereon a and are in the wire erty fence with ground digging posts, damaging holes iron fence flowers, plaintiffs; plaintiffs and that the shrubbery, etc., planted premises, and the owners of the defendants the absolute have no in- “enjoined the defendants be therein, and ask that terest and re- upon said trespass property”. from further strained answer plain- their the title of defendants contained a deed reservations subject from John tiffs is D. Payton, dated 13 April, to Thomas Doughty and wife which