Sebastian v. Kluttz, 6919SC400

• Decision Date: 22 October 1969
• Docket Number: No. 6919SC400,6919SC400
• Citation: 170 S.E.2d 104,6 N.C.App. 201
• Court: North Carolina Court of Appeals
• Parties: Lorene SEBASTIAN v. Daisy M. KLUTTZ.

Page 104

170 S.E.2d 104

6 N.C.App. 201

Lorene SEBASTIAN v. Daisy M. KLUTTZ.

No. 6919SC400.

Court of Appeals of North Carolina.

Oct. 22, 1969.

George L. Burke, Jr., Salisbury, for plaintiff appellee.

Robert M. Davis, Salisbury, and Clarence E. Horton, Jr., Johnson, Davis & Horton, Concord, for defendant appellant.

MALLARD, Chief Judge.

The first question discussed by defendant in her brief concerns the assignment of error relating to the failure of the court to allow her motion for nonsuit at the close of all the evidence in the cause of action alleging alienation of affections.

These actions alleging alienation of affections and criminal conversation are actions in tort. Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955).

One who, without privilege to do so, purposely alienates a husband's affections from his wife, or who has sexual intercourse with him, is liable for the harm thereby caused to her legally protected marital interests. Brown v. Brown, 121 N.C. 8, 27 S.E. 998, 38 L.R.A. 242 (1897); Restatement, Torts, § 690; Hinnant v. Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889 (1925). 'The legally protected marital interests of one spouse include the affections, society and companionship of the other spouse, sexual relations and the exclusive enjoyment thereof. In the case of a husband, they include the wife's services in the home. In the case of the wife, they include support by the husband.' Restatement, Torts, § 683.

The gravamen of the action for alienation of affections is the wife's loss of her protected marital right of the affection, society, companionship and assistance of her husband, and where there is no element of sexual defilement of her husband, malice must be shown. Malice as used in an action for alienaction of affections means 'injustifiable conduct causing the injury complained of.' Rose v. Dean, 192 N.C. 556, 135 S.E. 348 (1926). Malice also means 'a disposition to do wrong without legal excuse (Railroad Co. v. (Wakefield) Hardware Co., 143 N.C. 54, 55 S.E. 422), or as a reckless indifference to the rights of others.' Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769 (1920).

In 41 Am.Jur.2d, Husband and Wife, § 467, it is said:

'Alienation by persuasion differs from alienation by adultery in that, in the former, loss of consortium must be proved, while in the latter, it is conclusively presumed.'

In the case of Bishop v. Glazener, 245 N.C. 592, 96 S.E.2d 870 (1957), the Supreme Court said:

'The essential elements of an action for alienation of affections are the marriage, the loss of affection or consortium, the wrongful and malicious conduct of the defendant, and a casual connection between such loss and conduct. * * *'

'The wrongful and malicious conduct of the defendant need not be the sole cause of the alienation of affections. It suffices, according to the rule in a large majority of the cases, if the wrongful and malicious conduct of the defendant is the controlling or effective cause of the alienation, even though there were other causes, which might have contributed to the alienation. Annotation 19 A.L.R.2d, sec. 6, p. 500 et seq., where the cases are cited; 27 Am.Jur., Husband and Wife, p. 129.

Manifestly, if the affection of the wife was destroyed by the habits and conduct of the husband, or other cause, without the malicious interference or procurement of a third person, then such third person would not be liable. Hankins v. Hankins, Supra (202 N.C. 358, 162 S.E. 766). It is fundamental to a recovery against a third person that the alienation of affections resulted from his malicious interference. Annotation 108 A.L.R., pp. 426--427, where many cases are cited; Annotation 19 A.L.R.2d, pp. 471--509, Element of Causation in Alienation of Affections Action.'

Defendant contends that plaintiff's evidence failed to show that any genuine love and affection existed between plaintiff and her husband or that defendant had alienated any love and affection which did exist.

The evidence of the plaintiff tended to show that she and her husband were married 16 October 1940, and they have one son who is married and has his own home. On 11 April 1968 plaintiff's husband left the home they were occupying. Plaintiff testified:

'Mr. Sebastian and I have been separated before during our marriage. The first separation was in 1963. We remained apart then for two months, but we seen each other during that time. We were then reconciled. The second separation occurred approximately a year later. Mr. Sebastian left the premises on the first occasion and I left on the second occasion. I seen that after I had left out that it was better for me to go back, I felt more for Mr. Sebastian than I had thought I did when I had left. I returned to 1310 Glenwood Avenue, and Mr. Sebastian and I lived together until he left April 11, 1968.'

Plaintiff also testified that on the occasion when she left her husband they remained separated for five weeks. On both occasions they had reestablished their home after the separation.

Plaintiff testified that her relationship with her husband was good during Christmas 1967 and that during February 1968 he expressed affection for her on a number of occasions.

Plaintiff's evidence tended to show that defendant's husband died in July 1967. In November 1967 plaintiff's husband started visiting defendant in defendant's home and that thereafter they were seen together frequently in various places by the neighbors and others.

Mrs. Margaret Brooks, a witness for plaintiff, testified:

'I have seen Mr. Sebastian in or around the residence occupied by Mrs. Kluttz in the past twelve months. I was in my own yard working, mowing, and he was across the street in Mrs. Kluttz's yard and she was there too. They were working in the yard. I have seen them several times. I have seen Mr. Sebastian there in the evening and he would come out in the morning to go to work on John's Piano truck, and that would be about 6:30 or a quarter to seven.'

The evidence also showed that some time prior to the separation, the husband had been unfaithful to his marriage vows. However, this past activity had been forgiven and condoned by the plaintiff prior to the time defendant interfered with the marital relationship existing between plaintiff and her husband. Evidence also tended to show that the tranquillity of the home may have been impaired by the drinking and other conduct of the plaintiff's husband. However, this conduct does not appear to have been more than a contributing cause of the separation of plaintiff and her husband. The evidence tended to show defendant's conduct was the controlling and effective cause. Until defendant arrived on the scene, plaintiff and her husband had always resolved their differences. The defendant cites Warner v. Torrence, 2 N.C.App. 384, 163 S.E.2d 90 (1968), in which this Court sustained a nonsuit of the cause of action for alienation of affections on the grounds that the plaintiff failed to show the existence of any genuine love and affection which was alienated and destroyed by the defendant. We think the facts in Warner v. Torrence, are distinguishable from the facts in the case before us. Here, the evidence tended to show that some love and affection existed between plaintiff and her husband and that they had lived a relatively happy married life for approximately three years prior to the final separation on 11 April 1968. Although plaintiff's life with her husband apparently had not been as happy and tranquil as some marriages are, she was entitled to possess and enjoy all of her legally protected marital interests free from interference by the defendant. The husband and plaintiff were living together until the defendant, after the death of defendant's husband, became involved with plaintiff's husband and finally encouraged him to leave his wife in order to live with her. The consent, and apparent willingness, on the part of the plaintiff's husband to be seduced cannot be claimed as a defense by defendant because the husband cannot thus affect plaintiff's right to her legally protected marital interests. Powell v. Strickland, 163 N.C. 393, 79 S.E. 872 (1913).

The only evidence offered by the defendant was a separation agreement entered into between plaintiff and her husband dated 16 July 1968. The execution of the separation agreement was duly acknowledged by plaintiff before the Clerk of the Superior Court of Rowan County on 29 July 1968.

Plaintiff testified on cross-examination:

'The reason that the deed of separation was entered into was because of the differences between my husband and me. I felt it was to the best interest of my husband and me to sign the deed of separation since he had already took up residence with Mrs. Kluttz.'

There was ample evidence, when viewed in the light most favorable to the plaintiff, that the plaintiff and her husband were married, and that there was some love and affection existing between them which was alienated and destroyed by the wrongful and malicious acts of the defendant. We think in this case the existence of and extent of such love and affection was a matter to be considered and determined by the jury.

We are of the opinion and so hold that the court correctly overruled defendant's motion for judgment as of nonsuit in the action for alienation of affections.

'The term 'criminal conversation' is synonymous with 'adultery.' The cause of action is founded on the violation of the fundamental right of exclusive sexual intercourse between spouses and also on the loss of consortium.' 42 C.J.S. Husband and Wife § 697.

The elements of the cause of action for criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and plaintiff's spouse during the coverture. Alienation of affections is not a necessary element. 42 C.J.S. Husband and Wife § 698.

In 41 Am.Jur.2d, Husband and Wife, § 476, p. 402, it is written:

'A fundamental right that flows from...