Powell v. Benthall

• Decision Date: 04 October 1904
• Citation: 48 S.E. 598,136 N.C. 145
• Parties: POWELL v. BENTHALL et al.
• Court: North Carolina Supreme Court

48 S.E. 598

136 N.C. 145

POWELL v. BENTHALL et al.

Supreme Court of North Carolina

October 4, 1904

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

Action by D. C. Powell against W. T. Benthall and another. From a judgment for plaintiff, defendants appeal. Reversed.

In an action to recover damages for harboring plaintiff's wife after defendants were notified by plaintiff not to do so, the relation of the defendants to plaintiff's wife is relevant and material on the question of motive.

The plaintiff sued the defendants jointly upon two causes of action: (1) That they wrongfully and maliciously alienated the affections of his wife, and enticed her away from him (2) that they harbored his wife after being forbidden to do so. The jury rendered a verdict against the plaintiff on the first cause of action. On the second cause of action they found for the plaintiff, and awarded him $1,500 damages. The defendants, denying the material allegations of the complaint, say that the plaintiff's wife left home with his consent, to seek work; that she refused to return to him that their conduct was without malice to the plaintiff, and because of their relationship to his wife in good faith, and to assist a neglected daughter and sister in her unhappy condition, etc. The plaintiff testified that he married Eunice Parker during the year 1891, and lived with her at Aulander about six years. He failed in business in 1892. That he kept boarders and hired horses. In 1897 he left Aulander and his wife went to live with her sister, the feme defendant, near the town of Aulander. She asked permission to go. Said that her sister wanted her to help trim hats, and he thought that it was better for her to do so. That he was traveling and away from home a great deal. That defendants and he were friendly, and up to that time he had always supported his wife. After she went there, all went on smoothly, and he visited her. He went to Greensboro to live at the suggestion of the defendants Benthall and wife, who said it was a good place to live, and plaintiff could make money there. He corresponded with his wife, both writing frequently. Plaintiff introduced certain letters indicating affectionate regards on the part of his wife. He received a letter from her, which he destroyed, which troubled him very much. He left Greensboro immediately for home. Went direct to defendants' house, where he met his wife, who greeted him kindly, but seemed to be in distress. He stayed there until night. His wife said she was in great trouble, and wished to be moved away. Said that she wanted to go at once. He asked her to go to ride with him. She consented, but her sister Mrs. Benthall, objected; said that she wanted his wife to help on some work. His wife said she would go some other time. He saw defendant Benthall later in the evening. Mrs Benthall seemed mad at plaintiff. Said things could not go on as they were; that he was not trying to provide for his wife. He took supper there. Wife went on porch with him. Mrs. Benthall called his wife in, slammed the door, locking it. His hat was on the inside, and Mr. Parker got his hat, and he left. The next day he received a letter from his wife, which was put in evidence. She wrote: That she had decided not to have anything more to do with him unless he made a great change in himself. That she had tried him for six years, and the prospect of his making a living had been gloomy for a long time. That she was not going to be supported any longer by some one else's money. She had rather work for her own living than live that way. That she had hoped for a change, etc. That her people were willing to take care of her, but were not willing to take care of him, and that he must not come any more until she sent for him. That she was not mad with him, but did not want him to bother her any more until he could do her some good. She had considered the matter well, and that no one was putting her up to it; she was acting of her own free will. Said that she would return the ""things" which she has. That he had spent the lot which her father had given her. Witness said that he went at once to defendant, and saw his wife in the presence of Mrs. Benthall, and asked his wife why she wrote the letter. She replied that it was to protect herself. He said that he had come to move her away, with the furniture. She said that she would not go. He said that he would get a divorce. She objected. He said this to see what effect it would have on her. He testified to his affection for his wife. His furniture, horse, and buggy were at Benthall's. While he was insisting on his wife's going with him, Benthall came up, and said if they could not agree they had better divide up.

She agreed to give up half the property, and witness took some of it away, and took out process for the balance. When officer went witness did not go in. Saw his wife, and took hold of her, telling her that she must go with him. She pulled back crying a little. Witness told her she had to go. Said she would go if he would let her dress. Witness agreed to this, but would not let her go in the house; told her that she could go in the office near by. Clothes were brought, and she dressed, and got in a cart with witness. Before she went in office, Benthall interfered; started towards witness, rolling up his sleeves; said he did not want anything like that going on there. Officer stopped him, and Mrs. Benthall took hold of his wife's arm, and tried to take her from the witness. His wife went to his father's, and stayed there two days and nights. Warrant was taken out against the witness for assault. He and his wife lived as man and wife for two days. Went to the trial, and witness was convicted and fined. After the trial his wife went with her brother to the defendant's. The arrangement with Benthall was that witness' wife was to help her sister trim hats, and not pay board. Witness was to pay board when there. He identified a letter which he had given to a school teacher, and said that he got the letter back by mail at once. It was addressed to Mr. Benthall at his post office, which was kept in his store by Mrs. Benthall. It forbade the defendants from harboring, employing, or giving shelter or food to plaintiff's wife; that he was ready, willing, and able to take care of her. The letter was lost. Was dated December, some five months after trouble with his wife. There was other testimony tending to corroborate plaintiff. Mrs. Powell testified for defendants that she went to defendants' October, 1895, and lived there 22 months before she separated from her husband. She went there because her husband thought it best to do so. She denied several of the statements of her husband. No one counseled her to leave her husband, or prevented her from living with him. Neither of the defendants did so. When they divided property, he asked her for engagement ring. Said it would help him in getting another girl. She described the treatment of her when she dressed in the office. He pulled her down. She had on morning wrapper, and during the scuffle the buttons were torn off. Told him that she would rather die than go with him. He said she had to go; would take her dead or alive. Mr. Newsome said, "Don't let the woman dress in the road." He agreed to let her go in office. He went with her in office, holding her arm. Went with him because she could not help it. She had lost confidence in him. When she first mentioned to Benthalls her intention of separating from her husband, they told her to use her own pleasure; they would not advise her about it. Defendant W. T. Benthall testified that he married Mrs. Powell's sister. Powell came to see him, and made arrangements to move his wife to witness' house, and to keep his furniture. Told him that he would charge nothing, as she was his wife's sister; that she could help his wife about house. Did not ask plaintiff to come or let his wife come. He asked witness to take her. When he went to Greensboro, Powell borrowed $10 from witness. When he came back, said he had 26 cents. Witness gave Mrs. Powell no advice about leaving her husband. Knew nothing of any trouble between them. On the night he stayed at witness' house he said, "What is the matter with Eunice?" Witness asked him what he meant. Said she did not talk to suit him. Powell never seemed out of humor with witness until Mary Parker carried a message. He then talked as if some one was trying to take his wife away. Witness told him he had nothing to do with it; that he would take his wife to station any time she wanted to go. Powell wrote a note about harboring his wife. Read it to Mrs. Powell. When he read it he said, "Eunice, you will have to move." She said: "If you and my sister will not let me stay, I will have to go somewhere. I will live in a hollow tree before I will live with Mr. Powell again." Witness testified that she was his wife's sister, and he could not drive her from his house. Mrs. Benthall said nothing. Heard about Powell's publishing notices forbidding any one to let his wife stay in their house. Told his wife. Mrs. Benthall testified that when plaintiff was pulling his wife in the road she heard her screaming, and went to her. She was down in the road in the mud, her clothes torn almost off, her body was exposed. Went to her, but was repulsed by plaintiff. Gave no advice or suggestion at any time to sister about leaving her husband, nor prevented her from returning to him. Had let her live in house because she was her sister and wanted to stay. There was other corroborative testimony. At the close of the evidence defendants renewed their motion for nonsuit, which was refused. Defendants excepted. The defendants asked the court to charge the jury: "The defendants had the right to...