Scott v. Kiker, 8112SC1362

• Decision Date: 16 November 1982
• Docket Number: No. 8112SC1362,8112SC1362
• Citation: 297 S.E.2d 142,59 N.C.App. 458
• Court: North Carolina Court of Appeals
• Parties: Billy Wyatt SCOTT v. William L. KIKER, III.

Page 142

297 S.E.2d 142

59 N.C.App. 458

Billy Wyatt SCOTT v. William L. KIKER, III.

No. 8112SC1362.

Court of Appeals of North Carolina.

Nov. 16, 1982.

Reid, Lewis & Deese by Marland C. Reid and Renny W. Deese, Fayetteville, for plaintiff-appellee.

Jack E. Carter, Fayetteville, for defendant-appellant.

VAUGHN, Judge.

Alienation of affections and criminal conversation are tort actions. Elements of an action for alienation of affections are: the marriage, the loss of affection, the wrongful and malicious conduct of defendant, and a causal connection between such loss and conduct. Criminal conversation is adultery. The cause of action is based on the violation of the fundamental right to exclusive sexual intercourse between spouses. Sebastian v. Kluttz, 6 N.C.App. 201, 170 S.E.2d 104 (1969).

Defendant's first argument is that the trial court erred by allowing plaintiff to testify about his ex-wife's adultery, in violation of G.S. 8-56. We do not agree. According to G.S. 8-56, spouses are competent and compellable to testify as witnesses in civil actions, except "[n]othing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or... criminal conversation...." (Emphasis added). Since plaintiff's ex-wife was not a party to the action, nothing prohibited plaintiff from testifying about her adultery. In Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913), the Supreme Court held that a husband was competent to testify as a witness in his own behalf to the adultery of his wife in an action for criminal conversation and alienation of affections. Accord, Golding v. Taylor, 23 N.C.App. 171, 208 S.E.2d 422, cert. denied, 286 N.C. 334, 210 S.E.2d 57 (1974).

Defendant also contends that the trial court erred in allowing plaintiff to testify about a private conversation with his ex-wife. A spouse shall not "be compellable to disclose any confidential communication made by one to the other during their marriage." G.S. 8-56. The nonwitness spouse holds the privilege and may prevent the witness spouse from testifying about confidential communications. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967). Defendant, however, waived his privilege because he failed to object to the testimony, and he cannot raise it on appeal. Rule 10(b)(1), Rules of Appellate Procedure.

Defendant's second argument is that the trial court erred in failing to instruct the jury that they must find actual damages before awarding punitive damages. Since the causes of action of alienation of affections and criminal conversation were so intertwined, the court properly submitted only one issue of compensatory damages and one issue of punitive damages to the jury. Sebastian v. Kluttz, supra. Punitive damages may not be awarded unless compensatory damages are awarded. Phillips v. Universal Underwriters Ins. Co., 43 N.C.App. 56, 257 S.E.2d 671 (1979). Since the jury found both actual and punitive damages there was no error, even though the trial judge failed to instruct the jury that they must find actual damages before awarding punitive damages.

Defendant's third argument is that the trial court erred by not allowing his motion to set aside the award of damages because plaintiff failed to show that he suffered any pecuniary loss since his income increased after his divorce. Defendant is mistaken in his belief that compensatory damages must be based on pecuniary loss. In determining compensatory damages, the jury may also consider the loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of defendant have brought. See Powell v. Strickland, supra; Sebastian v. Kluttz, supra. Merely because plaintiff had a better paying job after the divorce does not necessarily diminish his suffering from losing his wife.

Defendant argues that the trial judge inferred to the jury that if they found the requisite malice for alienation of affections, they must find punitive damages. This is not true. To find punitive damages, plaintiff must show circumstances of aggravation in addition to the malice implied by law which was necessary to prove compensatory damages. Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980). The judge instructed the jury that to find alienation of affections, they must find either "adultery or that defendant acted maliciously. Malice is a disposition to do wrong without legal excuse." Punitive damages, the trial judge correctly instructed, "are not allowed as a matter of course, but they may be awarded only when there are some features of aggravation, as when the act is done wilfully and evidences a reckless and wanton disregard of plaintiff's rights."

Defendant contends that since plaintiff admitted that he was unfaithful to his wife, he should not be entitled to damages for criminal conversation because the cause of action for criminal conversation is based on the violation of exclusive sexual intercourse between spouses. We do not agree. The impairment of plaintiff's relationship with his wife that was due to his infidelity was merely a factor to reduce his damages. The trial judge correctly instructed the jury: "If the marital relationship between... [plaintiff and his wife] was already strained or impaired, then the amount of damages should be reduced accordingly." Infidelity, per se, does not prevent plaintiff from collecting damages for defendant's criminal conversation. For example, in Sebastian v. Kluttz, supra, the evidence showed that plaintiff's husband was a heavy drinker and had been unfaithful. The Court held that the husband's past activity may have been a contributing factor to their separation, but defendant's conduct was the controlling and effective cause.

Defendant's fourth argument is that the trial judge erred in failing to grant defendant's motion for nonsuit. G.S. 1-183 [repealed in 1967, effective 1 January 1970], provided for the motion for judgment as of nonsuit at the close of plaintiff's evidence. Today, we use a motion for directed...