Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325 (N.C., 1956)
Dorothy Davis ALLEN
Robert C. ALLEN.
Supreme Court of North Carolina.
Sept. 19, 1956
McLean, Gudger, Elmore & Martin By: Harry C. Martin, Asheville, for defendant, appellant.
Ward & Bennett, Asheville, for plaintiff, appellee.
The defendant demurred ore tenus in this Court for that the complaint failed properly to allege (1) sufficient acts and conduct on the part of the defendant to entitle the plaintiff to the relief demanded; and (2) that such acts were without adequate provocation on her part. He cites as authority Ollis v. Ollis, 241 N.C. 709, 86 S.E.2d 420; Best v. Best, 228 N.C. 9, 44 S.E.2d 214; Lawrence v. Lawrence, 226 N.C. 624, 39 S.E.2d 807; Pollard v. Pollard, 221 N.C. 46, 19 S.E.2d 1.
In the Ollis case the plaintiff alleged her husband’s abusive and violent treatment put her in fear for her safety and made it necessary for her to leave him. This Court held the complaint defective in that it alleged only the plaintiff’s conclusions. It failed to set out the particular acts of abuse and violence, of which she
complained, so that the Court could determine whether they were sufficient to support her conclusions.
The complaint in the Best case contained, among others, the allegation the defendant had become an habitual drunkard. That allegation, in itself, constituted a ground for divorce from bed and board, G.S. § 50-7(5), and hence was sufficient to support an action for alimony, G.S. § 50-16, even though other insufficient allegations also appeared in the complaint.
In the Lawrence case the defendant in his answer had charged the plaintiff with acts of adultery which she did not deny in her testimony. Failure to allege and to offer evidence that the acts charged against the defendant were without provocation on her part, was fatal to her cause.
In the Pollard case the complaint appears less explicit than the complaint in the instant case. However, the decision in Pollard v. Pollard was based not on the insufficiency of the allegations but upon the failure of proof to support them.
This case is distinguishable from those relied upon by the defendant. When liberally construed, as it must be in passing on the demurrer, we think the complaint states a cause of action. Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696. In passing on both the sufficiency of the allegations and the proof, we must take into account the fact that failure on the part of the defendant to live up to his promises which were made as an inducement to the reconciliation, revived his former offenses. Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909; Jones v. [244 N.C. 450] Jones, 173 N.C. 279, 91 S.E. 960; Page v. Page, 167 N.C. 346, 83 S.E. 625; Lassiter v. Lassiter, 92 N.C. 129, 130. Evidence of the plaintiff’s neglect, dissatisfaction with his marriage, cold indifference to his wife and children, plans to leave them, the amount of time spent away from home, and especially the lipstick smears upon his clothes, when combined with his visit to the apartment of Miss H. at night were sufficient to go to the jury on the first issue. The evidence that defendant’s acts were without provocation on the part of the plaintiff is somewhat less direct. The plaintiff testified that she had tried to be a wife to her husband and a mother to the children. She also testified that the defendant never at any time found fault with her or blamed or criticized her conduct in any particular. Added to the foregoing is the evidence of her good character. We conclude this evidence was sufficient to go to the jury on the second issue.
The demurrer ore tenus in this Court is overruled. The Assignment of Error No. 4, based on the court’s refusal to nonsuit, is not sustained. The defendant’s Assignment of Error No. 3 is not in form sufficient to enable us to consider it. Here it is: ‘The court erred in admitting the testimony as shown by the defendant’s exceptions (each consecutively numbered 3 to 24, inclusive) R. pp. 12-15.’ Assuming the exceptions enumerated may be treated under one assignment, Dobias v. White, 240 N.C. 680, 83 S.E.2d 785, the assignment is otherwise not in compliance with Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555. State v. Mills, N.C., 94 S.E.2d 324; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829, 831. “Always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is.’ ‘ The foregoing relates to assignments of error with respect to the admissibility of evidence.
When the assignment of error is to the court’s ruling on nonsuit, it is enough to refer to the motion, the ruling thereon, the number of the exception, and the page of the record where found. This Court can pass on the efficacy of the motion
only after reviewing all of the evidence. Attempt to summarize it in the assignment would be of no assistance. The place for such summary is in the brief.
The assignments of error to designated portions of the court’s charge cannot be sustained. When read contextually the charge is in substantial compliance with the decisions of this Court. We realize this is a borderline case. To reach this decision to sustain the verdict has not been easy. However, to reach a contrary decision would be even more difficult.
To require the complaining party to allege and prove lack of provocation at first blush may seem illogical and out of place. Such would be the case if only the parties to the suit were involved. But the State and society and the children have an interest in the marriage status, and [244 N.C. 451] in preserving the family when that can be done without undue hardship. To require the complaining party to show lack of provocation gives the Court a chance to see that the assistance of the law in breaking up the family is used for the benefit of the injured party only. For these reasons and others, nothing said here is intended to change or weaken what this Court has previously said in a long line of decisions, among them the following: Ollis v. Ollis, supra; Best v. Best, supra; Brooks v. Brooks, supra; Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636; Howell v. Howell, 223 N.C. 62, 25 S.E.2d 169; Carnes v. Carnes, 204 N.C. 636, 169 S.E. 222; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917; Martin v. Martin, 130 N.C. 27, 40 S.E. 822; O’Connor v. O’Connor, 109 N.C. 139, 13 S.E. 887; Jackson v. Jackson, 105 N.C. 433, 11 S.E. 173; White v. White, 84 N.C. 340.
The judgment of the Superior Court of Buncombe County is
JOHNSON, J., not sitting.