O'Briant v. O'Briant ( 1953 )

79 S.E.2d 252 (1953) 239 N.C. 101

O'BRIANT
v.
O'BRIANT.

No. 459.

Supreme Court of North Carolina.

December 16, 1953.

Sam J. Morris, Raleigh, Victor S. Bryant, Jr., and Victor S. Bryant, Durham, for plaintiff, appellant.

F. T. Dupree, Jr., Raleigh, for defendant appellee.

DEVIN, Chief Justice.

As a defense to the plaintiff's action for divorce a vinculo on the statutory ground of two years' separation, the defendant alleged and introduced evidence tending to show that the separation was caused by the wrongful and wilful abandonment of her by the plaintiff. But having admitted that the separation was initiated by an agreement which she signed, she endeavored to avoid its effect by allegation and evidence that she was induced to sign the agreement by the undue influence of the plaintiff. Cobb v. Cobb, 211 N.C. 146, 189 S.E. 479; Brown v. Brown, 205 N.C. 64, 169 S.E. 818. The evidence on this point, pro and con, and the rival contentions based thereon were submitted to the jury for their determination under the 4th issue, and also for consideration as they related to the 5th issue which was addressed to the defendant's counterclaim for divorce a mensa. The jury answered the issues in favor of the defendant, and from judgment thereon the plaintiff has appealed, assigning errors in the rulings of the trial court, chiefly in respect to the judge's instructions to the jury on these last issues.

The gravamen of the appellant's argument was that the plaintiff was placed at a disadvantage by the failure of the court to submit a separate issue as to undue influence, which was alleged to have been exercised by the plaintiff to procure the defendant's execution of the separation agreement. It was urged that this material question should have been directly presented to the jury with appropriate instructions, since the question as to the validity of the separation agreement had an important bearing on the whole controversy, a successful attack upon it being essential to the defendant's case. Plaintiff calls attention to the requirement of statute G.S. § 1-200 that it was the duty of the trial judge to submit issues on all material questions arising on the pleadings, and that whether requested or not this was a primary duty resting upon the judge. Griffin v. United Services Life Ins. Co., 225 N.C. 684, 686, 36 S.E.2d 225. It was contended that the court's instructions on undue influence in the connection in which they were given were prejudicial to the plaintiff.

On the other hand, the defendant points out that no such separate issue was tendered by the plaintiff, and that there was no objection or exception on this ground to the issues which were submitted by the court.

The court is not required to adopt any particular form of issues except to see that those which are submitted embrace all essential questions in controversy. America Potato Co. v. Jeanette Bros. Co., 174 N.C. 236, 93 S.E. 795. The rule was stated in Clark v. Patapsco Guano Co., 144 N.C. 64, 56 S.E. 858, 861, as follows: "The court below need not submit issues in any particular form. If they are framed in such a way as to present the material matters in dispute, and so as to enable each of the parties to have the full benefit of his contention before the jury and a fair chance to develop his case, and if when answered, the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statute is fully met." Whiteman v. Seashore Transportation Co., 231 N.C. 701, 58 S.E.2d 752; Turnage v. McLawhon, 232 N.C. 515, 61 S.E.2d 336; Caddell v. Caddell, 236 N.C. 686, 73 S.E.2d 923; McIntosh 545.

In the case at bar the court submitted the issue in this form: "4. If so, was said separation caused by the wrongful conduct of the plaintiff as alleged in the answer?" Under this issue the court submitted to the jury all the evidence and the contentions of both parties in relation thereto, including the defendant's claim that the separation agreement which she signed was procured by the undue influence of the plaintiff. After instructing the jury there was no evidence of fraud the court used this language: "The court will submit to you under this issue (4th) and under the instructions that it (I) will give you, the question as to whether or not the plaintiff exercised undue influence upon the defendant in the execution of said deed of separation."

Thereafter the court instructed the jury as to the meaning of undue influence as applied to the evidence in this case, and charged them that the burden of proof as to that, as well as to the other elements embraced in the 4th issue, was on the defendant. The jury was instructed that a valid separation agreement between husband and wife, in the absence of fraud or undue influence, "was binding on the parties, and would be a complete bar to a wife's action or cross-action for divorce from bed and board." As to the question of the validity of the separation agreement the court charged the jury as follows: "I instruct you that if the defendant Mrs. O' Briant has satisfied you from the evidence and by its greater weight that she signed or executed the separation agreement offered here in evidence, and that she did it because of undue influence, as I have defined that term to you, that such undue influence was exerted upon her by her husband, the plaintiff in this action, and that that was the sole reason for her executing and signing that agreement, then I instruct you that agreement would be null and void and she would not be bound thereby." The jury was instructed that if defendant had failed to satisfy them from the evidence, and by its greater weight of the presence in this case of all the elements of wilful abandonment they should answer the 4th issue "No."

It would seem, therefore, that the questions of the separation agreement and of the defendant's attack thereon on the ground of undue influence were embraced in the instructions given the jury under the 4th issue in as ample a manner as the plaintiff could reasonably have required. It is not perceived that the jury could have failed to understand the instructions given them as shown by the record in this case. The plaintiff's complaint on this ground is insufficient to justify us in setting aside the verdict and judgment on the 4th issue or the 5th issue either which was addressed to defendant's cross-action for divorce a mensa.

We have examined the other exceptions noted by the plaintiff and brought forward in his assignments of error and find none of sufficient merit to require another hearing. On the record we find

No error.