O'Briant v. O'Briant

• Decision Date: 16 December 1953
• Docket Number: No. 459,459
• Citation: O'Briant v. O'Briant, 79 S.E.2d 252, 239 N.C. 101 (N.C. 1953)
• Court: North Carolina Supreme Court
• Parties: O'BRIANT v. O'BRIANT.

Page 252

79 S.E.2d 252

239 N.C. 101

O'BRIANT v.O'BRIANT.

No. 459

Supreme Court of North Carolina.

Dec. 16, 1953

Sam J. Morris, Raleigh, Victor S. Bryant, Jr., and Victor S. Bryant, Durham, for plaintiff, appellant.

F. T. Dupree, Jr., Raleigh, for defendantappellee.

DEVIN, Chief Justice.

As a defense to the plaintiff's action for divorce a vinculo on the statutory ground of two years' separation, the defendant alleged and introduced evidence tending to show that the separation was caused by the wrongful and wilful abandonment of her by the plaintiff.But having admitted that the separation was initiated by an agreement which she signed, she endeavored to avoid its effect by allegation and evidence that she was induced to sign the agreement by the undue influence of the plaintiff.Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479;Brown v. Brown, 205 N.C. 64, 169 S.E. 818.The evidence on this point, pro and con, and the rival contentions based thereon were submitted to the jury for their determination under the 4th issue, and also for consideration as they related to the 5th issue which was addressed to the defendant's counterclaim for divorce a mensa.The jury answered the issues in favor of the defendant, and from judgment thereon the plaintiff has appealed, assigning errors in the rulings of the trial court, chiefly in respect to the judge's instructions to the jury on these last issues.

The gravamen of the appellant's argument was that the plaintiff was placed at a disadvantage by the failure of the court to submit a separate issue as to undue influence, which was alleged to have been exercised by the plaintiff to procure the defendant's execution of the separation agreement.It was urged that this material question should have been directly presented to the jury with appropriate instructions, since the question as to the validity of the separation agreement had an important bearing on the whole controversy, a successful attack upon it being essential to the defendant's case.Plaintiff calls attention to the requirement of statuteG.S. § 1-200 that it was the duty of the trial judge to submit issues on all material questions arising on the pleadings, and that whether requested or not this was a primary duty resting upon the judge.Griffin v. United Services Life Ins. Co., 225 N.C. 684, 686, 36 S.E.2d 225.It was contended that the court's instructions on undue influence in the connection in which they were given were prejudicial to the plaintiff.

On the other hand, the defendant points out that no such separate issue was tendered by the plaintiff, and that there was no objection or exception on this ground to the issues which were submitted by the court.

The court is not required to adopt any particular form of issues except to see that those which are submitted embrace all essential questions in controversy.America Potato Co. v. Jeanette Bros. Co., 174 N.C. 236, 93 S.E. 795.The rule was stated in Clark v. Patapsco Guano Co., 144 N.C. 64, 56 S.E. 858, 861, as follows: 'The court below need not submit issues in any particular form.If they are framed in such a way as to present the material matters in dispute, and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and if when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statute is fully met.'Whiteman v. Seashore...