Rose v. Dean

• Decision Date: 17 November 1926
• Docket Number: (No. 377.)
• Citation: 135 S.E. 348
• Parties: ROSE v. DEAN.
• Court: North Carolina Supreme Court

135 S.E. 348

(192 N.C. 556)

ROSE

v.DEAN.

(No. 377.)

Supreme Court of North Carolina.

Nov. 17, 1926.

Appeal from Superior Court, Surry County; Lyon, Judge.

Action by Neil Rose against W. W. Dean. Judgment for plaintiff, and defendant appeals. Error.

Graves & Graves and Walter E. Brock, all of Winston-Salem, for appellant.

W. F. Carter and J. H. Folger, both of Mt. Airy, for appellee.

ADAMS, J. This is an action to recover damages for the alienation of the affections of the plaintiff's wife. The defendant offered no evidence, and at the conclusion of the plaintiff's testimony moved to dismiss the action as in case of nonsuit. Upon denial of the motion issues were submitted to the jury, and upon the verdict judgment was rendered in favor of the plaintiff. The defendant's motion, in our opinion, should have been allowed.

The basis of the action is the husband's loss of the society, affection, and assistance of his wife, and, if there is no element of seduction or adultery, malice must be shown; but "malice, " as used here, means in-justifiable conduct causing the injury complained of. Cottle v. Johnson, 179 N. C. 42G, 102 S. E. 769.

The plaintiff testified that he married Pearl Newsom in March, 1920, and that one child was born of the marriage; that he moved his family from Mt. Airy to Winston-Salem in the spring of 1922; that he worked for the defendant, who was a machinist in a furniture factory; that on March 18, 1923, the plaintiff, his wife, and the defendant went together in an automobile from Winston-Salem to Mt. Airy, all occupying the front seat, the wife between her husband and the defendant. The next day the plaintiff and the defendant returned to Winston-Salem; Mrs. Rose remaining with her mother in Mt Airy. In response to a telephone call from his brother, the plaintiff went back to Mt. Airy on the day following, and on his arrival there was informed of a letter written by the defendant to the plaintiff's wife, which, however, had been delivered to another woman of the same name, For some months afterwards the plaintiff and his wife were separated.

The letter referred to was put in evidence by the plaintiff. A recital of its perfervid inanities is unnecessary, for his wife never received it, and there is no evidence that she had any acquaintance with the defendant until the day the three made the trip from Winston-Salem to Mt. Airy, or that there had been any other communication between them, except possibly a conversation in the presence of her husband or her mother. For want of other evidence the plaintiff relies...