Warner v. Torrence, 6820SC343

• Decision Date: 18 September 1968
• Docket Number: No. 6820SC343,6820SC343
• Court: North Carolina Court of Appeals
• Parties: W. D. WARNER v. Robert TORRENCE.

Page 90

163 S.E.2d 90

2 N.C.App. 384

W. D. WARNER v. Robert TORRENCE.

No. 6820SC343.

Court of Appeals of North Carolina.

Sept. 18, 1968.

Coble, Tanner & Grigg, by Eugene S. Tanner, Jr., Albemarle, for plaintiff appellant.

Brown, Brown & Brown, by Richard L. Brown, Jr., Albemarle, and James E. Roberts, Kannapolis, for defendant appellee.

CAMPBELL, Judge.

The facts alleged in the complaint are sufficient to constitute two causes of action, on either of which, if proven, the plaintiff is entitled to recover of the defendant damages, both actual and punitive. In Chestnut v. Sutton, 207 N.C. 256, 176 S.E. 743, it is stated:

'(T)hat the gravamen of the cause of action for the alienation of the affections of plaintiff's wife is the deprivation of the plaintiff of his conjugal rights to the society, affection, and assistance of his wife, and that the gravamen of the cause of action for criminal conversation is the defilement of plaintiff's wife by the defendant. In neither case is the consent of the wife a defense to a recovery by the plaintiff of the damages which he has sustained as the result of the wrongful conduct of the defendant. On each of these causes of action the plaintiff is entitled to recover of the defendant his actual damages, and in a proper case the jury may award plaintiff, in addition to his actual damages, punitive damages.'

In that case, as in the instant case, it is interesting to note that the original complaint joined the two causes of action together in one paragraph and damages are requested in a lump sum without differentiating the amount sought to be recovered in each.

In order to sustain the cause of action for alienation of affections, the law imposes upon the plaintiff the duty of showing by proper evidence the following facts: (1) that he and his wife were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; (3) that the wrongful and malicious acts of defendant produced and brought about the loss and alienation of such love and affection. Hankins v. Hankins, 202 N.C. 358, 162 S.E. 766. This case points out that if the love and affection of the wife was alienated or destroyed without interference or wrongful procurement of a third party, then such third party would not be liable in damages. The plaintiff has the burden of proving that the loss of his wife's affections was occasioned and brought about by the wrongful and malicious counsel, advice and procurement of the defendant. The plaintiff fails to carry this burden of proof. The record discloses a marriage in 1933; in 1953 they 'began to drift apart' and 'things just gradually got worse and worse.' Nothing would be gained by setting forth the constant bickering and actual fighting which occurred in this household between the plaintiff and his wife until the final separation in 1966. Suffice it to say, that the plaintiff fails to show the existence of any genuine love and affection which was alienated and destroyed by the defendant. We think the judgment of the trial court in sustaining the motion to nonsuit the cause of action for alienation of affections correct.

We are, however, constrained to agree with the plaintiff that the evidence is sufficient to support submission to the jury of an issue on the cause of action for criminal conversation. Sheriff McSwain of Stanly County testified that on the night of 29 June 1966 he went to the Pine View Motel in Stanly County about 1:00 a.m. and went to a room at the motel registered in the name of the defendant. There were no lights on in the room. He knocked at the door. In something like a...