Sumner v. . Sumner
44 S.E.2d 40
N.C.
1947
Check Treatment
Barnhill, J.

The record discloses the following as the concluding instruction of the court:

“Upon prompting by counsel for the plaintiff, I have this to say further : (I have already called your attention to the fact that this divorce sought by the plaintiff is upon the ground of two years’ separation and nоt upon the ground of adultery. .Now, with respect to the fourth issue and with respect to all of the issues submitted, the fourth, the fifth, and the sixth, if the plaintiff has satisfiеd you under his plea of being innocent of any wrongful or unlawful conduct tоward the defendant, and if he has satisfied you that he is innocent of any indulging оr perpetrating any cruel or barbarous treatment so as to endanger the life of the defendant, and if he has not offered any indignities to the person of the defendant as to render her condition intolеrable and life burdensome, or if he has satisfied you upon the evidence and by its greater weight with respect to the fourth issue, that the defendant committed adultery, as he contends he has offered evidence tending to show, why of course that would defeat the action of the dеfendant for a divorce from bed and board.)
“Plaintiff excepts to foregoing portion ‍​​​​‌​‌‌‌​​‌​​​‌​​‌‌‌​​‌​‌‌​​‌​​‌​‌​‌​​​​‌‌​‌‌‌​‍of charge in parentheses.
“EXCEPTION No. 17.
“Court: Is that what you asked for, Attorney Bell ?
“Attorney Bell : Yes, sir, and would entitle him to a divorce, your Honor.
“Court: (No, you are not suing for а divorce on the ground of adultery. It would find him blameless, of course, and find thаt she has been guilty of wrongful conduct, if such Tvas found by the jury, then they would in answering thе fourth issue take those facts into consideration.)
“Plaintiff excepts to foregoing portion ‍​​​​‌​‌‌‌​​‌​​​‌​​‌‌‌​​‌​‌‌​​‌​​‌​‌​‌​​​​‌‌​‌‌‌​‍of charge in parentheses.
“Exception No. 18.”

It is apparent the court below inadvertently, for a moment, got the relatiоn of the parties to the action reversed and spoke under the impression the husband was the defendant. The burden of proof on the fоurth, fifth, and sixth issues is on the defendant. The quoted charge places it upоn the plaintiff. This must be held for error.

*613 As the plaintiff does not bring forward any exception to the prior instruction of the court as to the burden of proof we may assume that it had correctly charged on this question. Evеn so this does not temper the prejudicial nature of the error. S. v. Absher, 226 N. C., 656.

As was said in S. v. Overcash, 226 N. C., 632: “When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must bе granted. We may not assume that the jurors possess such discriminating knowledge of the law as ‍​​​​‌​‌‌‌​​‌​​​‌​​‌‌‌​​‌​‌‌​​‌​​‌​‌​‌​​​​‌‌​‌‌‌​‍would enable them to disregard the erroneous and tо accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that рart of the charge that was incorrect. S. v. Mosley, 213 N. C., 304, 195 S. E., 830; Templeton v. Kelley, 217 N. C., 164, 7 S. E. (2d), 380; S. v. Starnes, 220 N. C., 384, 17 S. E. (2d), 346, and cited authorities. S. v. Walsh, 224 N. C., 218, 29 S. E. (2d), 743.” See also Dixon v. Brockwell, ante, 567.

This is particularly true when the erroneous instruction is the closing admonition of the court — the last word before the jury retired to make up their verdict. S. v. Benton, 226 N. C., 745; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388.

While, under the doctrine of invited error, a party cannot complain of a charge given at his request, Thompson v. Telegraph Co., 107 N. C., 449; Bell v. Harrison, 179 N. C., 190, 102 S. E., 200; Exchange Co. v. Bonner, 180 N. C., 20, 103 S. E., 907; Blum v. R. R., 187 N. C., 640, 122 S. E., 562, or which is in substance the same as one asked by him, Kelly v. Traction Co., 132 N. C., 369, rehearing denied, 133 N. C., 418; Griffin v. R. R., 138 N. C., 55; Smathers v. Hotel Co., 162 N. C., 346, 78 S. E., 224, we are of the opinion this doctrine has no aрplication here. The nature of the “prompting” by plaintiff’s counsеl is not disclosed. ‍​​​​‌​‌‌‌​​‌​​​‌​​‌‌‌​​‌​‌‌​​‌​​‌​‌​‌​​​​‌‌​‌‌‌​‍Neither is it made to appear that plaintiff at any time assumed the burden on these issues or requested the court to so сharge. Exchange Co. v. Bonner, supra. What was said thereafter could not have invited the error аlready committed. Indeed it discloses that the thoughts of the court and сounsel were not even then in complete accord.

To avoid any possible prejudice to either party on a rehearing we have purposely refrained from discussing any of the evidence offered.

The error in the charge necessitates ‍​​​​‌​‌‌‌​​‌​​​‌​​‌‌‌​​‌​‌‌​​‌​​‌​‌​‌​​​​‌‌​‌‌‌​‍a new trial. It is so ordered.

The costs in this Court will be taxed against plaintiff.

New trial.