Kinney v. Kinney

• Decision Date: 09 December 1908
• Citation: 63 S.E. 97,149 N.C. 321
• Court: North Carolina Supreme Court
• Parties: KINNEY . v. KINNEY.

63 S.E. 97

(149 N.C. 321)

KINNEY .

v.KINNEY.

Supreme Court of North Carolina.

Dec. 9, 1908.

1. Divorce (§ 93^*)—Pleading—Necessity for Alleging Knowledge of Adultery — Statutory Provisions.

In a divorce action for adultery, the statute does not require that plaintiff's knowledge of defendant's adultery for six months before bringing suit should be alleged in the complaint, but only in the verification thereof which gives the court jurisdiction.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 93.*]

2. Divorce (§ 144*)—Pleading—Issues.

The pleadings in a divorce action present the issues to be submitted to the jury, and hence where plaintiff's knowledge of defendant's adultery for six months before the action, though alleged in the verification of the complaint to give the court jurisdiction, was not alleged in the complaint, it was proper to refuse to submit that question as an issue.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 144.*]

3. Divorce (§ 99*)—Pleadings—Defenses-Abandonment—Statutory Provisions.

Revisal 1905, § 1564, providing that in divorce actions the material facts alleged in the complaint shall be deemed to be denied by defendant whether actually denied in a pleading or not, does not relieve defendant from the necessity of pleading new matter which may if true defeat the right to a divorce, and hence defendant, if relying on a wrongful abandonment to defeat the action, must plead it in her answer.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 99.*]

4. Divorce (§ 108*)—Pleading —Construction of Complaint—Abandonment.

In a divorce action for adultery, an allegation of the complaint that the acts of adultery were committed without plaintiff's procurement and without his consent, and that plaintiff has not voluntarily cohabited with defendant since his discovery of the commission of the adultery, which was denied by the answer, did not raise an issue as to plaintiff's abandonment of defendant.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 108.*]

5. Divorce (§ 108*)—Pleading—Issues.

In a divorce action for adultery, where plaintiff alleged that at a certain time and place defendant committed adultery with a certain man, which was denied by the answer, the question was made an issue by the pleadings, and was properly submitted.

[Ed. Note.—For other cases, see Divorce, Dec. Dig. § 108.*]

6. Divorce (§ 115*)—Proceedings—Evidence —Admissibility.

In a divorce action for adultery, testimony of a witness that he saw defendant committing adultery at a date between the times at which she was alleged in the complaint to have committed acts of adultery with the same person was admissible as tending to explain their previous relations.

[Ed. Note.—For other cases, see Divorce. Dec. Dig. § 115.*]

Appeal from Superior Court, Rowan County; Councill, Judge.

Divorce action by W. A. Kinney against Mary E. Kinney. Judgment for plaintiff, and defendant appeals. Affirmed.

The fifth and seventh sections of the complaint were as follows:

"(5) That on or about the last of February and the 1st of March, 1906, defendant went to the room of Joseph Coppel, in the Wachovia Loan & Trust Building, in the town of Spencer, when and where she met H. L. Reynolds, and when and where they closed the door of the said Coppel's room, confined themselves therein, and without the presence of any one else, stopped up the keyholes with material suitable for such purposes, subjected themselves to each other's embraces for a period of time extending from about 2 o'clock until about 5 o'clock, during which period of time and at which place the said defendant, Mary Eliza Kinney, committed adultery, and committed various acts of adultery with the said H. L. Reynolds."

"(7) That each and all of said acts of adultery were committed without the consent, connivance, privity, or procurement of the plaintiff, and that the plaintiff has not voluntarily cohabited with defendant since the discovery by him of the commission by the defendant of the several acts of adultery complained of."

This is an action by the plaintiff against the defendant, his wife, for divorce. It is alleged in the complaint that the defendant committed adultery with H. L. Reynolds in February, 1905, in the city of Washington and in the same month in the city of Richmond, Va., and in February or March, 1900, in Spencer, N. C. In the seventh section of the complaint the plaintiff alleged: "That each and all of said acts of adultery were committed without the consent, connivance, privity, or procurement of the plaintiff, and that the plaintiff has not voluntarily cohabited with defendant since the discovery by him of the Commission by the defendant of the several acts of adultery complained of." The defendant filed an answer in which she denied all the allegations of the complaint, except the first and second, as to the marriage and the residence of the plaintiff, which were admitted.

The issues and the answers thereto were as follows:

"(1) Did plaintiff and defendant Intermarry as alleged in the complaint? Answer: Yes.

"(2) Has plaintiff been a resident of the state of North Carolina for two years next preceding the commencement of this suit? Answer: Yes.

"(3) Did the defendant and H. L. Reynolds commit adultery in the city of Richmond, Va., In February, 1905, as alleged in the complaint? Answer: No.

"(4) Did defendant and H. L. Reynolds commit adultery in Coppel's room in the Wachovia Loan & Trust Building, in the town of Spencer, N. C, as alleged in the complaint? Answer: Yes."

Judgment was rendered upon the verdict for the plaintiff, and defendant appealed.

The defendant tendered the following issues, which the court refused to submit:

"(5) Did the plaintiff have the knowledge of the adulteries alleged in the complaint to have been committed the last of February and about the 1st of. March, 1906, for six months prior to the beginning of the suit, or the filing of the complaint?

"(6) Did the plaintiff separate himself from the defendant on August 23, 1905, and has he since lived separate and apart from her?" Defendant excepted. There was evidence that the plaintiff separated from his wife August 23, 1905.

The defendant requested the court to give the following instructions to the jury:

"(1) If the jury believe the evidence of plaintiff, the plaintiff abandoned and separated himself from defendant the 23d day of August, 1905, and has lived separate and apart from her ever since. There is no evidence as to this fact, except that introduced by the plaintiff, W. A. Kinney.

"(2) If the jury believe the evidence of the plaintiff, they should find that he did not have knowledge of the alleged adultery charged to have been committed the last of February and about the 1st of March, 1906, as charged in the complaint for six months before the beginning of this action. The action was begun October 10, 1906. The complaint was filed October 11, 1906. It is not enough that he should have had a mere belief or suspicion, but he must have had reasonable knowledge or actual knowledge."

The instructions were refused, except as given in the general charge. Defendant excepted.

The court charged the jury fully upon the issues and evidence. There was no objection to any part of the charge, except the following:

"(1) It is the law of this state that, if the wife shall commit adultery, the husband is entitled to a divorce, and in a suit brought by the husband against the wife, if it is shown from the evidence, whether circumstantial or otherwise—that is, shown from the evidence—strong, convincing, and conclusive, that the wife has committed an act of adultery, this entitles the husband to a divorce. Much has been said during the course of the argument by counsel representing the defendant as to the effect of a husband abandoning his wife, and, after doing so, suing her for a divorce upon the ground that she committed an act of adultery after the husband had abandoned her. Whatever the law may be with reference to a condition of this kind is not a matter for you to consider in answering the Issues submitted to you. The court has seen proper to refuse to submit an issue of abandonment as tendered by the defendant upon the ground that none such arises upon the pleadings or upon the evidence, and hence, as before stated, you are not to consider whether there was or was not an abandonment of the defendant by the plaintiff.

"(2) It is further urged before you that the plaintiff did not wait...