Deaton v. Deaton

67 S.E.2d 626 (1951) 234 N.C. 538

DEATON
v.
DEATON.

No. 379.

Supreme Court of North Carolina.

November 21, 1951.

Bernard W. Cruse and R. Furman James, Concord, for plaintiff appellee.

E. Johnston Irvin and C. M. Llewellyn, Concord, for defendant appellant.

VALENTINE, Justice.

The questions upon this appeal revolve around defendant's demurrer ore tenus to the complaint, his motion to dismiss as of nonsuit at the close of all the evidence, and his motion to set aside the verdict.

The demurrer was general in terms. It is not directed to any one or more of the several causes for divorce alleged in the complaint but to the complaint as a whole. Wiscassett Mills Co. v. Shaw, Com'r of Revenue, 233 N.C. 71, 62 S.E.2d 487.

It is a well established rule in this jurisdiction that a complaint is sufficient to withstand a demurrer if it in any part or to any extent presents a cause of action, or if sufficient facts in support of a cause of action can be fairly gathered therefrom. Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807; Wiscassett Mills Co. v. Shaw, Com'r of Revenue, supra; Brewer v. Wynne, 154 N.C. 467, 70 S.E. 947. It is also held that a complaint which alleges two or more causes of action is good against a demurrer, if only one cause of action is sufficiently stated. Meyer v. Fenner & Beane, 196 N.C. 476, 146 S.E. 82; Best v. Best, 228 N.C. 9, 44 S.E.2d 214.

It is not necessary for the plaintiff to establish all of the grounds for divorce a mensa et thoro alleged in her complaint in order to sustain her action. It is sufficient if she establishes the defendant's guilt of any of the acts that would constitute a cause of action for divorce from bed and board as enumerated in G.S. § 50-7. Albritton v. Albritton, 210 N.C. 111, 185 S.E. 762; Hagedorn v. Hagedorn, 211 N.C. 175, 189 S.E. 507; Brooks v. Brooks, 226 N.C. 280, 37 S.E.2d 909. It, therefore, appears that defendant's demurrer was properly overruled.

The defendant entered a general demurrer to the evidence. His exception to the ruling of the court thereon does not present for decision the question of whether there was sufficient evidence to support the alleged causes of action to which issues 7 and 8 are directed. If he desired to challenge the sufficiency of the evidence to be submitted to the jury on either or both of these issues, he should have directed his motion to those particular causes. State v. Benson, 234 N.C. 263, 66 S.E.2d 893.

Defendant's motion for judgment as of nonsuit at the close of all the evidence was a general motion and referred to no particular cause of action set forth in the complaint. As against this motion, which is substantially a demurrer to the evidence, plaintiff is entitled to have her evidence examined in the light most favorable to her, and is entitled to every reasonable inference and intendment to be drawn therefrom. Such a motion admits as true that which her evidence tends to prove with respect to each cause of action alleged in the complaint. Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881. If the plaintiff offers in support of her contention more than a scintilla of evidence, the matter then becomes a jury question. Gates v. Max, 125 N.C. 139, 34 S.E. 266; Cable v. Southern R. Co., 122 N.C. 892, 29 S.E 377; Cox v. Norfolk & C. R. Co., 123 N.C. 604, 31 S.E. 848.

Measuring the plaintiff's evidence by the rules of interpretation laid down by this Court, her evidence was sufficient to withstand defendant's motion for judgment as of nonsuit. If the defendant had in apt time made a motion to nonsuit the plaintiff with respect to the causes of action in which she alleged that he had become an habitual drunkard and had committed adultery, the results may have been entirely different. Instead, his motion to nonsuit was directed toward the entire evidence, some parts of which were abundantly sufficient to take the case to the jury and, therefore, sufficient to repel a motion for nonsuit. The defendant could have prayed for instructions as to issues arising upon these two causes of action and a refusal of such prayer may have presented this matter in a different light. Lea v. Bridgeman, 228 N.C. 565, 46 S.E.2d 555.

The motion to set aside the verdict presents no question for decision. While the defendant seeks to use this and the other exceptions relied upon as a basis for his argument that there was no evidence to support the verdict on the issues answered against him, this exception comes too late. It has been held in this jurisdiction "with marked uniformity that an objection that there was no evidence or no sufficient evidence to support a verdict cannot be taken for the first time after the verdict has been returned." Mincey v. Goode Construction Co., 191 N.C. 548, 132 S.E. 462; Moon-Taylor Co. v. Gray-Smith Milling Co., 176 N.C. 407, 97 S.E. 213; Wilkerson & Bowles v. Pass, Woody & Long, 176 N.C. 698, 97 S.E. 466; Lea v. Bridgeman, supra.

Defendant's exception to the signing of the judgment is without merit. Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Query v. Gate City Life Insurance Co, 218 N.C. 386, 11 S.E.2d 139.

It follows that the defendant's exceptive assignments of error relied on in this Court fail to point out any cause for disturbing the verdict rendered. Therefore, the judgment thereon must be affirmed. In the trial below we find

No error.