Hyatt v. . McCoy , 194 N.C. 760 ( 1927 )

Of the one hundred and sixty assignments of error sixty-eight are left out of the appellant's brief and must be treated as abandoned. 192 N.C. 852, Rule 28. We have examined those which have not been abandoned and find it as unnecessary as it is inexpedient to discuss them separately. Many of them, relating to the same subject-matter, may be considered together. Those in the first group, subdivided as (a), (b), (c) and (d) in the appellant's brief have reference to testimony which was admitted for the purpose either of corroboration or of showing the means by which the defendant alienated the affections of the plaintiff's wife, including the offer of money, efforts to have her leave the State, repeated expressions of his affection, or the effect the defendant's conduct had on the mind of the plaintiff. We see no reason for the rejection of this evidence. It was certainly pertinent to the first issue; and in our opinion, when considered in connection with the first two issues, the courts' refusal to strike out the whole of the fifth and sixth paragraphs of the complaint was free from error. These paragraphs set forth the paralyzed condition of the plaintiff resulting from personal injury received while in the defendant's service, and according to the plaintiff's evidence made use of by the defendant for the accomplishment of his purpose. The court withdrew from the jury all evidence tending to show that since the plaintiff's injury there had been no intercourse between him and his wife, and expressly cautioned the jury not only that this evidence should not be considered, but that the testimony of Mrs. Hyatt should be considered so far as it tended to establish the matters involved in the first but not in the second issue.

The admission of improper or incompetent evidence which is withdrawn from the jury and stricken out will not constitute reversible error, especially when the jury is particularly instructed not to consider it or to be influenced by it in making up the verdict. In S. v. May, 15 N.C. 328,Ruffin, C.J., remarked: "If improper evidence be received, it may afterwards be pronounced incompetent, and the jury instructed not to consider it"; and the principle embodied in this concise statement has been recognized and enforced without material variation. McAllister v.McAllister, 34 N.C. 184; Gilbert v. James, 86 N.C. 245; Toole v. Toole,112 N.C. 150; Cowles v. Lovin, 135 N.C. 488; Cooper v. R. R., 163 N.C. 153;Raulf v. Light Co., 176 N.C. 691. But the appellant contends that the error was not cured because the jury was instructed to consider all the evidence. That the instruction referred to all the evidence which had been admitted and had not been withdrawn is apparent from the positive caution given in the following parts of the charge: "The court cautions you and charges you that it is the law that the testimony of Mrs. Hyatt can only be considered with reference to the charge of alienation of her affections. Out law does not permit, and very wisely, a woman in a situation of this kind to testify as to facts which would tend to establish the second charge in this case, that is, the charge of criminal intercourse. Our lawmakers have in their wisdom decided this would lay down too broad an opening for fraud and collusion, and have enacted a statute prohibiting a woman in all cases of this kind to testify as to acts of adultery. . . . Upon the second issue the court charges the jury that the wife of the plaintiff is not a competent witness for the plaintiff to show criminal intercourse between herself and the defendant, and the jury in passing upon this issue will not consider her testimony for such purpose."

Other exceptions under subdivision (d), taken to the admission of the plaintiff's testimony of conversations between himself and his wife after his discovery of her condition, seem to be based on the theory that the declarations of the wife concerning her improper relations with the defendant were incompetent. In McCall v. Galloway, 162 N.C. 353, it is said that the excluded testimony was intended to put in evidence the declarations of the wife against her husband. But not so in the present case; the case cited is therefore not an authority for the appellant's position. It was not admitted as evidence for or against the plaintiff on account of criminal conversation between his wife and the defendant; it was competent as tending in part to corroborate Mrs. Hyatt and in part to show the humiliation and suffering endured by the plaintiff in consequence of the defendant's wrong.

The appellant's motion to dismiss the action as in case of nonsuit was properly denied. We do not assent to the proposition that there was no evidence that the wife's affections had been alienated or, excluding the testimony of Mrs. Hyatt, that there was no evidence to justify the answer to the second issue. The evidence was clearly sufficient to sustain the verdict. Grant v. Mitchell, 156 N.C. 15, 19; Powell v. Strickland, 163 N.C. 394; Cottle v. Johnson, 179 N.C. 426.

The appellant has assigned for error several excerpts from the instructions given the jury. We have carefully examined them one by one in their relation to the whole charge, and have not discovered any error entitling the appellant to a new trial. To dwell upon or to outline these instructions would unduly prolong the opinion and would serve no useful purpose. Those not restricted to a recital of the contentions embrace a statement of legal principles which have frequently been approved.

On defendant's appeal we find no error. The plaintiff is entitled to a judgment for the full amount awarded by the jury, both as to compensatory and as to punitive damages.

No error.