Cottle v. Johnson

• Decision Date: 14 April 1920
• Docket Number: 304.
• Citation: 102 S.E. 769,179 N.C. 426
• Parties: COTTLE v. JOHNSON.
• Court: North Carolina Supreme Court

102 S.E. 769

179 N.C. 426

COTTLE v. JOHNSON.

No. 304.

Supreme Court of North Carolina

April 14, 1920

Appeal from Superior Court, Pender County; Allen, Judge.

Action by J. D. Cottle, Jr., against W. B. F. Johnson. Judgment for plaintiff, and defendant excepted and appeals. New trial ordered on the issue of damages.

In a suit for alienation of the wife's affections, evidence of conversations and letters between her and plaintiff affording opportunity for collusion should be kept within proper bounds by instructions, but failure to so instruct is not error where collusion is negatived by the wife's being a witness for defendant and sustaining his contentions.

This is an action to recover damages for the alienation of the affections of the plaintiff's wife and for criminal conversation.

The evidence of the plaintiff tended to show that he and his wife were married in 1913, and that they lived happily together until July, 1918, when the defendant induced and enticed her to leave him, and that she has lived separate from him since that time. Also, that the relationship between the defendant and his wife was improper and criminal.

The evidence in behalf of the defendant tended to prove that he did not induce or entice the wife to leave the plaintiff that she left him because of his improper treatment of her and voluntarily went to the home of the defendant, where she lived with him and his wife as a companion and paying for her board.

His honor admitted evidence of conversations between the plaintiff and his wife prior to the separation and of letters written by them, and the defendant excepted.

The charge of his honor on the issue of damages was as follows:

"Upon that issue there is no other rule that I am aware of as to how you will proceed except this: (If he is entitled to damages at all, he would be entitled to reasonable compensation for the injury done him. And reasonable compensation is one of these things you cannot measure like you would measure out corn or determine the price on a horse, or something of that kind; you have to consider all the circumstances and say what, in your opinion, would be reasonable compensation to him for his damages.) To so much of his honor's charge as appears in parenthesis above the defendant in apt time excepted.

And then if you find he himself has been guilty of bad conduct towards his wife, you may consider that by way of reducing the damages that you think he would otherwise be entitled to and then say what that reasonable damage would be; and, then you may (if you see fit in your discretion, add to that what we call punitive damages--that is, damages by way of punishment--if you think it ought to be done, or exemplary damages, as it is sometimes called, and then say, in considering all those matters, what damages he would be entitled to). To so much of his honor's charge as appears in parenthesis above, the defendant in apt time excepted."

The jury returned the following verdict:

"(1) Did the defendant alienate the affections of the plaintiff's wife and cause her to separate from her husband, the plaintiff, as alleged in the complaint? Answer: Yes.

(2) Did the defendant seduce and carnally know the plaintiff's wife as alleged in the complaint? Answer: No.

(3) If so, what amount of damages has the plaintiff sustained? Answer: $8,000."

There was a judgment for the plaintiff, and the defendant excepted and appealed.

Brown, J., dissenting.

McClammy & Burgwin, of Wilmington, and Stevens & Beasley, of Warsaw, for appellant.

George R. Ward, of Wallace, and C. E. McCullen, of Burgaw, for appellee.

ALLEN J.

The complaint alleges two causes of action, one for alienation of the affections of the wife of the plaintiff, and the other for criminal conversation.

The gravamen of the first cause of action is the deprivation of the husband of his conjugal right to the society, affection, and assistance of his wife, and, of the second, the defilement of the wife by sexual relation.

In criminal conversation, "The authorities show the husband has certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband's rights as against the wrongdoer; and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful." Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754. And in an action for alienation of the affection it must be shown that the conduct of the defendant was intentional, and the defendant "is not liable unless he acted maliciously or from improper motives implying malice in law whether he is a parent of or a stranger to the plaintiff's spouse." 13 R. C. L. 1466.

"It may be laid down as a general rule, at least where there is no element of seduction or adultery, that a defendant in an action for alienation of affections is not liable unless he acted maliciously whether he is a parent of or stranger to the plaintiff's spouse. It is true that, as is hereinafter shown, it requires more evidence to establish malice on the part of the parent than is necessary in the case of a stranger, but this difference is an evidential one merely. * * * The term 'malice' does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but implies merely a conduct injurious to another, though proceeding from an ill-regulated mind not sufficiently cautious before it occasions the injury. If the conduct is unjustifiable, and actually caused the injury complained of, malice in law will be implied. Boland v. Stanley, supra [88 Ark. 562, 115 S.W. 163, 129 Am. St. Rep. 114]; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397." Geromini v. Brunelli, 46 L. R. A. (N. S.) 465, note.

"Malice" is also defined as a disposition to do a wrong without legal excuse (Railroad Co. v. Hardware Co., 143 N.C. 54, 55 S.E. 422), or as a reckless indifference to the rights of others (Logan v. Hodges, 146 N.C. 44, 59 S.E. 349, 14 Ann. Cas. 103).

It does not necessarily mean ill will, and includes a wrongful act knowingly and intentionally done without just cause or excuse. Stanford v. Grocery Co., 143 N.C. 427, 55 S.E. 815. When understood in this sense, and as a necessary element in establishing the plaintiff's cause of action for alienation of affections, the finding upon the first issue that the defendant alienated the affections of the plaintiff's wife and caused her to separate from him, as alleged in the complaint, that is, maliciously, entitled the plaintiff to recover compensatory damages, which include loss of the society of his wife, loss of her affection and assistance, as well as for his humiliation and mental anguish; but the right to punitive damages does not attach as matter of law because the first issue was found for the plaintiff.

"The right under certain circumstances to recover damages of this character is well established with us; but, as said in Holmes v. Railroad, 94 N.C. 318, such damages are not to be allowed 'unless there is an element of fraud malice, gross negligence, insult, or other cause of aggravation in the act which causes the injury.' And again, in the concurring opinion in Ammons v. Railroad, 140 N.C. 200 , it is said: 'Such damages are not allowed as a...