Biggs v. Biggs

• Decision Date: 21 September 1960
• Docket Number: No. 19,19
• Citation: 253 N.C. 10,116 S.E.2d 178
• Parties: James Maurice BIGGS, by His Next Friend, Jim Biggs, Piaintiff, v. Norma Jean BIGGS, by Her Guardian ad litem, Nora Weiters, Defendant.
• Court: North Carolina Supreme Court

Page 178

116 S.E.2d 178

253 N.C. 10

James Maurice BIGGS, by His Next Friend, Jim Biggs, Piaintiff, v. Norma Jean BIGGS, by Her Guardian ad litem, Nora Weiters, Defendant.

No. 19

Supreme Court of North Carolina.

Sept. 21, 1960

Sanford W. Brown, Asheville, for defendant, appellant.

Styles & Styles, Asheville, for plaintiff, appellee.

MOORE, Justice.

(1) Defendant assigns as error the failure of the court to nonsuit the action.

At the close of plaintiff's evidence defendant moved for nonsuit. The motion was overruled and defendant excepted. Thereafter defendant introduced evidence and plaintiff offered evidence in rebuttal. At the close of all the evidence there was no renewal of the motion to nonsuit. Defendant assigns as error both the refusal of the court to nonsuit at the close of plaintiff's evidence and the failure to dismiss at the close of all the evidence.

Assignment of error No. 5 is as follows: 'Exception No. 7 (R. p. 53). At the conclusion of all the evidence, the defendant renewed her motion for dismissal of the action as of nonsuit and for a directed verdict in her favor on her plea in bar therein. Motion denied. Exception by defendant.'

There is no exception shown at page 53 of the record. A page by page examination of the record does not disclose an exception numbered 7 nor any renewal of the nonsuit motion after defendant began the introduction of evidence.

'If the defendant introduces evidence he thereby waives any motion for dismissal or judgment as of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal.' G.S. § 1-183. 'The power of the court to grant an involuntary nonsuit is altogether statutory and must be exercised in accord with the statute.' Warren v. Winfrey, 244 N.C. 521, 522, 94 S.E.2d 481; Ward v. Cruse, 234 N.C. 388, 389, 67 S.E.2d 257. The defendant, having failed to move for dismissal at the close of all the evidence and having waived her motion made at the close of plaintiff's evidence, has failed to provide proper basis for the assignments of error for failure to nonsuit, and they are not sustained.

With respect to the supposed motion for directed verdict, the record does not show that any such motion was made. The assignment of error relating thereto is not based on an exception. 'The Supreme Court will not consider questions not properly presented by objections duly made and exceptions duly entered. The assignments of error must be based on exceptions duly noted * * *' 1 Strong: N. C. Index, Appeal and Error, § 19, pp. 88-9. Waddell v. Carson, 245 N.C. 669, 677, 97 S.E.2d 222.

(2) Defendant maintains that she is entitled to a new trial for error in admission of incompetent evidence.

Defendant denied that she committed adultery but alleged that, if it should be found she had indulged in adulterous acts, defendant forgave her and condoned the acts by resuming the marital relationship.

She testified in part: In October 1959 after the institution of this divorce action, plaintiff, who was a member of the U. S. Air Force and stationed in Florida, telephoned and asked her to come to Florida and bring their daughter, Serita, he thought they could get back together. She and Serita went to Florida on 17 October 1959 and registered at a motel where plaintiff spent the night with them. He had sexual intercourse with defendant at the motel. The next day he told her he was coming to Asheville and they would live together. He said he would drop the divorce case. She is pregnant as a result of the intercourse with plaintiff in Florida. He later repudiated his agreement to drop the case and live with her.

Before the above testimony of defendant was given, plaintiff, on cross examination by defendant's counsel, stated: Defendant came to Florida. She arrived on 17 October 1959, called him at the Base and told him he could come to see Serita if he wanted to. He went to the motel with two friends. He met his wife downstairs and talked to her about twenty minutes. He carried Serita to the room and remained there about a minute and a half. His friends were present. He then returned to the Base. He did not spend the night with his wife; she is not pregnant from having intercourse with him at the motel.

On redirect examination he testified:

'Question. State whether or not you had sexual relations with Norma Jean Biggs down in Florida when she was down there?

'Defendant objects. Overruled. (Exception).

'Answer. No sir.

'Question. How long were you in her presence in the room with her when you were down there?

'Defendant objects. Overruled. (Exception).

'Answer. I would say about a minute and a half; I took the child to the door and I stood there about a minute and a half.'

Defendant's contention is that plaintiff was not competent to testify to nonaccess.

In the light of the pleadings and evidence in this case, the question for decision is: Where, in an action by a husband for divorce on the ground of adultery, the wife pleads condonation and testifies that the husband had intercourse after agreeing to forgive her and that she is pregnant as a result of the intercourse, is it error to permit the husband to deny the intercourse?

The answer to this question involves a consideration of the Lord Mansfield rule and several statutory provisions of our law.

In Goodright v. Moss, 2 Cowp. 591 (1777), Lord Mansfield declared that 'it is a rule founded in decency, morality and policy that they (husband and wife) shall not be permitted to say after marriage, that they have had no connection, and therefore the offspring is spurious.' Under this rule a husband or wife is incompetent to testify to the husband's nonaccess where such testimony would tend to bastardize or prove a child conceived after marriage illegitimate. This rule is generally recognized in the United States. Stansbury: N. C. Evidence, § 61, p. 107. In early North Carolina decisions the rule was recognized and applied. Boykin v. Boykin, 70 N.C. 262; State v. Pettaway, 10 N.C. 623. Later the court apparently considered that the rule had been abrogated by statute (G.S. § 8-56). State v. McDowell, 101 N.C. 734, 7 S.E. 785. However, the latest decisions in this jurisdiction uniformly recognize and apply the rule in cases where the legitimacy or paternity of a child is directly in issue or is a necessary inquiry in determining a material issue. State v. Campo, 233 N.C. 79, 62 S.E.2d 500; State v. Bowman, 231 N.C. 51, 55 S.E.2d 789; Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224; West v. Redmond, 171 N.C. 742, 88 S.E. 341. We find no decision of this Court which applies the rule of Lord Mansfield where legitimacy of a child is not in issue.

In defendant's able brief we find an exhaustive list of authorities from other jurisdictions. Because of statutory limitations, often at variance with our statutes, and the difference in factual situations involved, we find these of little help in the situation here presented. Defendant chiefly relies upon the following cases: Adams v. Adams, 1930, 102 Vt. 318, 148 A. 287; Harward v. Harward, 1938, 173 Md. 339, 196 A. 318; Admire v. Admire, 1943, 180 Misc. 68, 42 N.Y.S.2d 755. In the Adams case the wife brought an action for divorce on the grounds of cruelty and desertion. The husband defended on the ground that plaintiff had given birth to an illegitimate child. He thereby raised the issue of legitimacy in his pleadings. In Harward the plaintiff sued for divorce on the ground of adultery and alleged that his wife had been delivered of an illegitimate child as a result of her adulterous acts. Thus, he placed the paternity of the child directly in issue, and the Court declared it to be an issue in the case. In the Admire case the husband sued 'for divorce and for an adjudication that child born during coverture was illegitimate.' Paternity was an issue in all these cases. There was much dicta favorable to defendant's contention but the situations involved were different from that in the case sub judice.

In the instant case paternity was not in issue. The challenged evidence was merely a denial of defendant's affirmative defense of condonation by act of intercourse. Abbott v. Abbott, 1928, 132 Misc. 11, 228 N.Y.S. 611. The testimony of the defendant had no tendency to bastardize the child then in ventre sa mere. It would have had no such effect in law had the child been born prior to the testimony. Parenthetically, it is unknown to the Court whether or not a child has since been born, but this makes no difference in the decision of this case. '* * * (N)o judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture * * *.' G.S. § 50-11. Since the evidence in question did not in any respect tend to bastardize a child and the question of legitimacy was not in issue, the nonaccess rule has no application in this case.

There is the further contention that the challenged testimony was incompetent by reason of G.S. § 8-56. The pertinent provisions of this statute are: 'In any trial * * * the husband or wife of any party thereto * * * shall, except as herein stated, be competent and compellable to give evidence, as any other witness on behalf of any party to such suit * * *. Nothing herein shall render any husband or wife competent or compellable to give evidence...