Hagedorn v. Hagedorn
| Decision Date | 27 January 1937 |
| Docket Number | 676. |
| Parties | HAGEDORN v. HAGEDORN et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; J. A. Rousseau, Judge.
Action by Frances W. Hagedorn against Heyman Hagedorn and another wherein defendant Lula Hagedorn set up a cross-action. From a judgment adverse to named defendant and adverse in part to defendant Lula Hagedorn, defendants appeal.
Under statute providing that spouses should not be compelled to disclose confidential communications made during marriage testimony of wife, in action for maintenance and support, as to such communications, held admissible, since statute did not render voluntary disclosure incompetent, and modified common-law rule that one spouse could not be witness against the other (C.S. § 1801; C.S.Supp.1924, § 1667).
Civil action for maintenance and support under C.S.Supp. 1924, § 1667, and for counsel fees, also to sequester certain property alleged to have been conveyed to feme defendant with intent to defraud plaintiff of her marital rights.
The gravamen of plaintiff's complaint is that she and Heyman Hagedorn were married January 24, 1912, that defendant has separated himself from plaintiff and has failed to provide her and the child of their marriage with necessary subsistence according to his means and condition in life, and that he has been guilty of misconduct constituting causes for divorce; wherefore plaintiff brings this action to have a reasonable subsistence and counsel fees allotted and paid or secured to her from the estate or earnings of her husband.
Plaintiff further alleges that in 1931, Heyman Hagedorn purchased two valuable tracts of land in Greensboro and placed title thereto in the name of his mother Lula Hagedorn, with the ultimate intent of defrauding plaintiff of her marital rights.
The material allegations of the complaint were denied by Heyman Hagedorn.
The defendant Lula Hagedorn, answering the complaint, admitted that "Heyman Hagedorn caused deed to be made to this defendant * * * for the purpose of securing the replacement of moneys she had loaned her son." The feme defendant thereupon set up a cross-action for $13,061, which amount she asserted, was secured by the conveyance of the property in question and evidenced by notes held by her. It was also in evidence that she had paid taxes on said property to the amount of $677.96, and likewise held her son's note to cover this item.
The jury returned the following verdict:
"1. Were the plaintiff, Mrs. Frances Hagedorn, and defendant Heyman Hagedorn lawfully married? A. Yes.
2. Did the defendant, Heyman Hagedorn, commit adultery with Aileen Bennett, as alleged in the complaint? A. Yes.
3. If so, did the plaintiff, Mrs. Frances Hagedorn, condone the acts of adultery? A. No.
4. Did the defendant, Heyman Hagedorn, offer such indignities to the person of the plaintiff as to render her condition intolerable and her life burdensome? A. Yes.
5. If so, did the plaintiff, Mrs. Frances Hagedorn, forgive and condone the acts of the defendant, Heyman Hagedorn? A. No.
6. Did the defendant separate himself from his wife and fail to provide her with the necessary subsistence according to his means and condition in life? A. Yes.
7. What amount, if any, is the defendant, Mrs. Lula Hagedorn, entitled to recover of the defendant, Heyman Hagedorn? A. $677.96."
Judgment on the verdict, from which the defendants appeal, assigning errors.
Sapp & Sapp, of Greensboro, for appellant Heyman Hagedorn.
Frazier & Frazier, of Greensboro, for appellant Lula Hagedorn.
Herbert S. Falk, of Greensboro, for appellee.
In the companion case of Hagedorn v. Hagedorn, 210 N.C. 164, 185 S.E. 768, the plaintiff sought to reach certain property, which, it was alleged, her husband had placed in corporate holding to defeat her marital rights. Here a similar effort is made to reach property, title to which plaintiff alleges her husband has placed in Lula Hagedorn with like intent and purpose.
Heyman Hagedorn's Appeal.
The only exceptions requiring attention on Heyman Hagedorn's appeal are those directed to the plaintiff's testimony in which she undertakes to speak to the subject of adultery, in support of the second issue, and, also, certain alleged confidential communications.
Counsel for plaintiff freely conceded in the trial court that the examination of his client in support of the second issue was at first inadvertent, or without proper attention to C.S. § 1801, which prohibits either spouse from testifying to the other's adultery, and asked that the same be stricken out. This was done. The error was thus cured. Gray v. High Point, 203 N.C. 756, 166 S.E. 911; State v. Lattimore, 201 N.C. 32, 158 S.E. 741; Nance v. Fertilizer Co., 200 N.C. 702, 158 S.E. 486; Eaker v. Shoe Co., 199 N.C. 379, 154 S.E. 667; Hyatt v. McCoy, 194 N.C. 760, 140 S.E. 807; State v. Stewart, 189 N.C. 340, 127 S.E. 260; In re Will of Staub, 172 N.C. 138, 90 S.E. 119. In McAllister v. McAllister, 34 N.C. 184, Ruffin, C.J., said: "It is undoubtedly proper and in the power of the Court to correct a slip by withdrawing improper evidence from the consideration of the jury, or by giving such explanations of an error as will prevent it from misleading a jury." He expressed the same opinion in State v. May, 15 N.C. 328, and the practice has been observed since that time. State v. Davis, 15 N.C. 612; State v. Collins, 93 N.C. 564; State v. McNair, 93 N.C. 628; Bridgers v. Dill, 97 N.C. 222, 1 S.E. 767; State v. Crane, 110 N.C. 530, 15 S.E. 231; Wilson v. Mfg. Co., 120 N.C. 94, 26 S.E. 629; State v. Lunsford, 177 N.C. 117, 97 S.E. 682; State v. Dickerson, 189 N.C. 327, 127 S.E. 256. But even if we should agree with the defendant that there was error in respect of the second issue, still this would not work a new trial unless error were also committed in respect of the fourth issue, for in an action like the present, only one cause for divorce, either a vinculo or a mensa et thoro, need be alleged and shown. Albritton v. Albritton, 210 N.C. 111, 185 S.E. 762. In the instant case, the plaintiff has elected to make "assurance doubly sure" by alleging two causes for divorce, one absolute, the other from bed and board. Either would have sufficed under C.S.Supp. 1924, § 1667. Price v. Price, 188 N.C. 640, 125 S.E. 264.
Plaintiff was allowed to testify to a number of conversations with her husband, which, it is contended, were of a confidential nature and should have been excluded under authority of McCoy v. Justice, 199 N.C. 602, 155 S.E. 452. It is provided by C.S. § 1801 t...
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