Osornio v. Osornio , 12 N.C. App. 30 ( 1971 )

MORRIS, Judge.

Defendant’s evidence tends to show that: She had gone to California on 13 January 1969 to take her nephew home. When she got there she found her mother was sick, and there was no one to care for her, so defendant remained in California. She returned to North Carolina in late March — about a week before her wedding anniversary which was on 31 March — to see her husband and so they could be together on their anniversary. She went back to California in June. Immediately before returning to California, she was in Myrtle Beach, S. C., with her husband helping him in a restaurant business. They were staying in a man’s apartment over the restaurant. She told her husband she wanted a separate room. He got angry and after they closed the restaurant, informed her that he had made reservations for her to go back to California. He did not ask whether she wanted to go. That night he took her from Myrtle Beach, S. C., to their home in Fayetteville, N. C., for the express purpose of allowing her to finish packing her bags to leave for California; he threatened her with bodily harm, to-wit, “to hit her,” if she did not comply with his wishes; she was afraid not to do as she was told to do by the plaintiff. Plaintiff took her to the airport and bought her a one-way ticket to California and put her on the plane.

“On appeal from the granting of a motion for directed verdict, we must determine the sufficiency of plaintiff’s evidence guided by the same principles applicable in determining the sufficiency of evidence to withstand the former motion for nonsuit under G.S. 1-183.” Anderson v. Mann, 9 N.C. App. 397, 399, 176 S.E. 2d 365 (1970).

“Under the established rules all the evidence tending to support plaintiff’s claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, with contradictions, conflicts, and inconsistencies therein being resolved in plaintiff’s favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47 (1969).” Anderson v. Mann, supra.

Applying these rules to the evidence here, we are of the opinion that there was sufficient evidence for submission to the jury on the question of whether defendant was in fact maliciously turned out of doors.

Error and remanded.

Judges Britt and Parker concur.