Brown v. Brown

• Decision Date: 21 February 1899
• Citation: 124 N.C. 19,32 S.E. 320
• Court: North Carolina Supreme Court
• Parties: BROWN. v. BROWN.

32 S.E. 320

(124 N.C. 19)

BROWN.

v.BROWN.

Supreme Court of North Carolina.

Feb. 21, 1899.

Alienating Husband's Affections — Persons Liable—Parent of Husband—Malice.

1. A parent is liable in damages for inducing his married child to abandon his wife, only where he did so maliciously.

2. A parent's willfully inducing a married child to abandon his wife is not necessarily malicious, as the parent's acts may have been with good motives.

3. Where a parent induces his married child to abandon his wife without proper investigation, or from recklessness, or through dishonest motives, malice is presumed.

Appeal from superior court, Pasquotank county; Norwood, Judge.

Action by Lizzie Brown against Jesse R. Brown. There was a judgment for plaintiff, and defendant appeals. Reversed.

G. W. Ward and Pruden & Pruden, for appellant.

E. F. Aydlett, for appellee.

MONTGOMERY, J. The only question (raised by demurrer to the complaint) for decision when this case was here before (121 N. C. 8, 27 S. E. 998) was whether a married woman, abandoned by her husband, could maintain, without the joinder of her husband, an action in tort The court held that such an action could be maintained. The present appeal is before us on exceptions to the charge of his honor.

The complaint contains three alleged causes of action: The first, that the defendant, unlawfully, wrongfully, and wickedly intendingto injure the plaintiff and to deprive her of the society and aid of her husband, destroyed the affection of her husband towards her, and caused him to leave and abandon her; second, that he commenced against her a false and malicious prosecution for an alleged assault and battery upon her husband; and, third, for the false arrest and imprisonment of the plaintiff based upon such charge.

The defendant is the father of the plaintiff's husband, and In his answer there is a denial of the material allegations of the complaint.

The issues arising on the pleadings as to the last two causes of action were found in favor of the defendant, and therefore do not concern the appeal. The first issue was In these words, "Did defendant alienate the affection of the plaintiff's husband, and cause him to abandon her, as alleged in the complaint?" The second issue was, "If so, what damage has plaintiff sustained?" His honor, in substance, instructed the jury that, if they should find that the defendant willfully caused the plaintiff's husband to forsake and abandon her, the plaintiff would be entitled to recover, and the jury should answer the first issue, "Yes." And, as to the measure of damages, the court charged the jury that if they should find that the defendant caused the plaintiff's husband to willfully forsake and abandon her, and that it was not done with malice, they should give only such actual damages as the plaintiff had sustained. There was error in those instructions. The complaint, in substance, alleged that the conduct of the defendant was malicious. The charge of his honor was that, if the jury should find that the defendant willfully caused the husband to abandon the wife, then the first issue (which raised the question of malice in the defendant) should be answered in the affirmative. The word "willfully" does not mean "maliciously." "Willfully" implies that "an act done in that spirit is done knowingly and obstinately and persistently, but not necessarily maliciously." State v. Massey, 97 N. C. 465, 2 S. E. 445. It cannot be that the law disregards the...