Morris v. Bruney, 8520SC158

• Decision Date: 21 January 1986
• Docket Number: No. 8520SC158,8520SC158
• Citation: 78 N.C.App. 668,338 S.E.2d 561
• Court: North Carolina Court of Appeals
• Parties: , 57 A.L.R.4th 393 Jennie B. MORRIS v. James R. BRUNEY.

Page 561

338 S.E.2d 561

78 N.C.App. 668, 57 A.L.R.4th 393

Jennie B. MORRIS v. James R. BRUNEY.

No. 8520SC158.

Court of Appeals of North Carolina.

Jan. 21, 1986.

Henry T. Drake, Wadesboro, for plaintiff-appellant.

Taylor and Bower by George C. Bower, Jr., and E.A. Hightower, of counsel, Wadesboro, for defendant-appellee.

BECTON, Judge.

Plaintiff, Jennie B. Morris, brought an action for the alienation of the affection of her son and for slander against defendant, James R. Bruney. The trial court granted defendant's motion for summary judgment as to the claim for alienation of affection but denied summary judgment on the slander claim. The trial court dismissed the slander claim at the close of plaintiff's evidence. Plaintiff appeals.

I

Many, if not most, of the facts in this case are in dispute. The parties described the same activities in different tones and with contrasting emphasis on various details. But on appeal from summary judgment and nonsuit, we must take the facts in a light most favorable to the non-movant, the plaintiff. They are summarized below.

Jennie Morris is the mother of four children--three by her first husband, Roy Thomas Morris, and one by her second husband. One of her children, Derrick Morris, turned sixteen on 9 October 1983. Around this time, Jennie Morris and Derrick lived next door to James Bruney, who was married and had three teenage step-children. Jennie Morris and James Bruney were very friendly and sociable neighbors. They frequently visited in each other's homes, and their children spent time together.

Derrick was a cooperative, loving and caring son, who did well in school and often helped around the house, until about August 1983 when he began to spend a great deal of time (twenty to twenty-five hours per week) with James Bruney. In the past, Bruney had conducted hypnotic sessions with various people, including Jennie Morris, and, without Jennie's consent, attempted to exercise mind control over Derrick through closed hypnotic sessions. Because of this, Derrick became progressively less cooperative, more hostile toward Jennie and obstinate. Derrick refused to do his usual chores and called his mother unreasonable. Jennie expressed her concern to Derrick, Bruney, and Bruney's wife, and she told Derrick to stay away from Bruney's residence.

In essence, Bruney interfered with Jennie's relationship with her son by telling Derrick that his mother was unreasonable, immature, and unintelligent and that Bruney could be the father Derrick needed. Derrick began to do poorly at home and at school. He refused to accept a car his mother gave him for his sixteenth birthday because Bruney had convinced Derrick that Jennie's rules for the use of the car were unreasonable. Derrick left home, and Bruney tried to convince Derrick's father to institute court proceedings to get custody of Derrick. Jennie found notes in Bruney's handwriting in Derrick's room in which Bruney admitted he had controlled Derrick's mind and had told Derrick that Jennie had gotten married because she was pregnant and left her husband for another man. Bruney encouraged Derrick to become sexually overactive and to refuse to communicate with Jennie.

In her Complaint, Jennie alleged several instances of slander by Bruney, generally disparaging Jennie's ability to raise her family and her fitness as a mother, but also asserting that she was pregnant before she was married. Jennie alleged that all of this was false. As a consequence, Jennie claimed, she suffered the loss of services and companionship of her son and was subjected to scorn, contempt and ridicule entitling her to $100,000 in actual damages and $150,000 in punitive damages.

Other facts necessary for an understanding of the case will be described in the body of the opinion.

II

Jennie Morris' claim for alienation of the affection of her child is similar to Edwards v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979). In Edwards, this Court considered, as an issue of first impression in North Carolina, whether a parent could recover from another parent for alienating the affection of their child. After stating the general rule that, absent seduction or abduction, no action will be supported by the parent-child relationship, the Court noted that such an action was neither recognized at common law nor provided for by statute in this State. Id. at 300-01, 259 S.E.2d at 14 (quoting 3 Lee, N.C. Family Law Sec. 244, at 132 (1963) and other authorities). The Court found the reasoning in Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949) (child has no action against third party for alienating affections of mother) controlling, primarily because of the distinction drawn between the relationship of a husband and wife and that of a parent and child. The former is protected because of the unique nature of the injury involved--a loss of consortium and conjugal society--a right peculiar to the marital relationship. Edwards, 43 N.C.App. at 302, 259 S.E.2d at 15.

This Court has also recognized that the gravamen of the action for alienation of affections is a spouse's loss of the protected marital right of the affection, society, companionship and assistance of the other spouse. Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104 (1969). The relation of parent and child supports no legal right similar to that of consortium.

Id.

Jennie Morris cites Howell v. Howell, 162 N.C. 283, 287, 78 S.E. 222, 224 (1913) which held that a father has an action against one who intentionally interrupts the relation of the father and child or who abducts the child from the father's home. In Howell, the parents of the child had agreed in writing that their child would remain with the mother until her sixth birthday, at which time she would be returned to her father. Just before the child reached age six, the mother "spirited the child away beyond the State to some place unknown to the plaintiff." 162 N.C. at 283-84, 78 S.E. at 223. Thus, Howell is distinguishable in that it involved the physical abduction--"the unlawful taking away or concealment"--of a minor child. Id. at 286, 78 S.E. at 224.

Similarly, Little v. Holmes, 181 N.C. 413, 107 S.E. 577 (1921) is distinguishable. In Little, the Supreme Court held that a father had an action against one who induced the father's minor sixteen-year-old daughter to leave home against her father's will, even though with the consent of the daughter. The action in Little was for the abduction of the child, not the alienation of the child's affection. The defendant had driven to the father's house "by the back way," in the father's absence, and "spirited away" the child. The mother was home, and she protested passionately; the defendant said they were going to Monroe, but he sped away in the car to South Carolina where the child was married to another man who lied about the child's age. 181 N.C. at 413-14, 107 S.E. at 577. The case for abduction was clear, and the Court held that, under Howell, abduction was a valid cause of action. The Court then discussed, among other things, whether the plaintiff could recover damages for the alienation of his daughter's affection, and the Court held that he could. See id. at 416-18, 107 S.E. at 578-80.

Thus, there are several cases decided by our Supreme Court in the late nineteenth century and in the early part of this century that recognize civil causes of action for the seduction or the abduction of minor children. See, e.g., Little; Howell; Snider v. Newell, 132 N.C. 614, 44 S.E. 354 (1903) (seduction); Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268 (1898) (seduction); Scarlett v. Norwood, 115 N.C. 284, 20 S.E. 459 (1894) (seduction). In these cases, one element of damages to consider was the suffering caused by the alienation of the affection of the abducted or seduced minor child. Nevertheless, this does not form the basis for a cause of action based solely on alienation of affection.

The allegations in the case at bar are insufficient to support an action for abduction. Plaintiff correctly asserts that abduction need not be accomplished against the will of the child. Plaintiff quotes language from Little, however, for the proposition that abduction may be accomplished by mere persuasion.

Even on an indictment for abduction it is not necessary that it should be against the will of the minor child. It is sufficient if it is against the will of the father and that it is committed by violence, fraud, or persuasion. S. v. Burnett, 142 N.C., 581; S. v. Chisenhall, 106 N.C., 676; S. v. George, 93 N.C., 567. The defendants could not be indicted, however, for our statute for abduction applies only when the child is under fourteen years of age. C.S., 4222, 4223, 4224.

Little, 181 N.C. at 418, 107 S.E. at 579. Thus, on a criminal indictment for abduction, it was sufficient to aver that the defendant took and carried away the victim by force, fraud or persuasion. See State v. Burnett, 142 N.C. 577, 581, 55 S.E. 72, 74 (1906); State v. Chisenhall, 106 N.C. 676, 679, 11 S.E. 518, 519 (1890).

In a civil case for the abduction of a minor, there must be some allegation that the minor child was taken or carried away, actually or constructively, by the defendant. In Little, the defendant deprived "the father, forcibly and violently and against his will, of the custody and society of his daughter...." 181 N.C. at 415, 107 S.E. at 578. In the case at bar, plaintiff Morris alleges only that her son left home, with the aid of defendant, after defendant Bruney cast aspersions on plaintiff's character and fitness as a mother. This is insufficient to support an action for abduction in this State. Were we to rule otherwise, every parent whose child were convinced to leave home before majority would have a cause of action for abduction through which to recover for the alienation of affection. There are many sociological and other pressures that prey on children's minds, and some educational, religious and political...