Sumner v. Sumner

• Decision Date: 17 September 1947
• Docket Number: 94
• Citation: 44 S.E.2d 40,227 N.C. 610
• Parties: SUMNER v. SUMNER.
• Court: North Carolina Supreme Court

44 S.E.2d 40

227 N.C. 610

SUMNER v. SUMNER.

No. 94

Supreme Court of North Carolina

September 17, 1947

Plaintiff instituted this action for divorce on the grounds of two years' separation. The defendant filed answer in which she (1) pleads recrimination, (2) alleges a cross action for divorce a mensa under G.S. s 50-7 subsections 3 and 4, and (3) prays alimony and attorneys' fees.

Issues were submitted to and answered by the jury as follows:

'1. Were the plaintiff and the defendant legally married, as alleged in the complaint? Answer: Yes.

'2. Have the plaintiff and the defendant lived separately and apart from each other for two years next preceding the institution of this action? Answer: Yes.

'3. Has the plaintiff been a resident of the State of North Carolina immediately preceding the institution of this action for six months? Answer: Yes.

'4. Was the separation between the plaintiff and the defendant caused by the unlawful and wrongful conduct and treatment by the plaintiff of the defendant? Answer: Yes.

'5. Did the plaintiff endanger the life of the defendant by his cruel and barbarous treatment of her, as alleged in the answer and cross-action? Answer: Yes.

'6. Did the plaintiff offer such indignities to the person of the defendant as to render her condition intolerable and life burdensome? Answer: Yes.

'7. Did the plaintiff abandon the defendant, as alleged in the answer and cross-action? Answer: ____

'8. Has the defendant been a resident of the State of North Carolina more than six months prior to the beginning of this action? Answer: Yes.'

Thereupon the court entered judgment (1) granting defendant a divorce a mensa and (2) requiring the plaintiff to make payments of alimony as therein set out. Plaintiff excepted and appealed.

P H. Bell, of Plymouth, for plaintiff appellant.

Fountain & Fountain, of Tarboro, for defendant appellee.

BARNHILL Justice.

The record discloses the following as the concluding instruction of the court:

'Upon prompting by counsel for the plaintiff, I have this to say further: (I have already called your attention to the fact that this divorce sought by the plaintiff is upon the ground of two years' separation and not upon the ground of adultery. Now, with respect to the fourth issue and with respect to all of the issues submitted the fourth, the fifth, and the sixth, if the plaintiff has satisfied you under his plea of being innocent of any wrongful or unlawful conduct toward the defendant, and if he has satisfied you that he is innocent of any indulging or perpetrating any cruel or barbarous treatment so as to endanger the life of the defendant, and if he has not offered any indignities to the person of the defendant as to render her condition intolerable and life burdensome, or if he has satisfied you upon the evidence and by its greater weight with respect to the fourth issue, that the defendant committed adultery, as he contends he has offered evidence tending to show, why of course that that would defeat the action of the defendant for a divorce from bed and board.)

'Plaintiff excepts to foregoing portion of charge in parentheses.

'Exception No. 17.

'Court: Is that what you asked for, Attorney Bell?

'Attorney Bell: Yes, sir, and would entitle him to a divorce, your Honor.

'Court: (No, you are not suing for a divorce on the ground of adultery. It would find him blameless, of course, and find that she has been guilty of wrongful conduct, if such was found by the jury, then they would in answering the fourth issue take those facts into consideration.)

'Plaintiff excepts to foregoing portion of charge in parentheses.

'Exception No. 18.'

It is apparent the court below inadvertently, for a moment, got the relation of the parties to the action reversed and spoke under the impression the husband was the defendant. The burden of proof on the fourth, fifth, and sixth issues is on the defendant. The quoted charge places it upon the plaintiff. This must be held for error.

As the plaintiff does not bring forward any exception to the prior instruction of the court as to the burden of proof, we may assume that it had correctly charged on this question. Even so this does not temper the prejudicial nature of the error. State v. Absher, 226 N.C. 656, 40 S.E. 26.

As was said in State v. Overcash, 226 N.C. 632, 39 S.E.2d 810, 811: 'When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted. We may not assume that the jurors possess such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that part of the charge that was incorrect. State v. Mosley, 213 N.C. 304, 195 S.E. 830; Templeton v. Kelley, 217 N.C. 164, 7 S.E.2d 380; ...