Barker v. Dowdy

Stacy, C. J.

This is the same case that was before us on demurrer to the complaint at the Spring Term, 1943, reported in 223 N. C., 151, 25 S. E. (2d), 404. It is here now on demurrer to the evidence and the validity of the trial.

Defendant insists that plaintff’s own evidence shows his wife’s estrangement derives from their quarrel in August, 1941; that plaintiff told the officers in January, 1942, “Dowdy had been giving him trouble with his wife” for the past six months — just the length of time following the quarrel — and that his testimony of remonstrance is too fanciful to support a verdict for alienation of affections. Rose v. Dean, 192 N. C., 556, 135 S. E., 348. The evidence suffices, we think, to carry the case to the jury on the first cause of action. Johnston v. Johnston, 213 N. C., 255, 195 S. E., 807; Chestnut v. Sutton, 207 N. C., 256, 176 S. E., 743; Cottle v. Johnson, 179 N. C., 426, 102 S. E., 769.

We are constrained to agree with the defendant, however, that the evidence is wanting in sufficiency to support a verdict for criminal conversation. S. v. Miller, 214 N. C., 317, 199 S. E., 89; S. v. Woodell, 211 N. C., 635, 191 S. E., 334; S. v. Aswell, 193 N. C., 399, 137 S. E., 174., It does no more than raise a suspicion, which is explained by the defendant’s evidence. Pollard, v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1; Walker v. Walker, 201 N. C., 183, 159 S. E., 363; Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 917. If tbe failure to testify under tbe circumstances bere disclosed affords an inference against tbe defendant, and we bave beld tbat it does, Powell v. Strickland, 163 N. C., 393, 79 S. E., 872, Walker v. Walker, supra, tben tbe fact tbat be goes on tbe stand and explains tbe suspicious circumstances would avoid sucb inference or remove any unfavorable impression tbat might arise from tbe failure to testify.

Tbis necessitates a new trial on tbe first cause of action, because tbe first and second issues were submitted jointly to tbe jury, and tbe 3rd, 4tb and 5tb issues would need to be reconsidered after elimination of tbe second issue. Hankins v. Hankins, 202 N. C., 358, 162 S. E., 766; 27 Am. Jur., 129.

On first cause of action, New trial.

On second cause of action, Reversed.