BARNHILL, J., concurring.
DEVIN, C.J., dissenting.
ERVIN, J., concurs in dissent.
Civil action for absolute divorce from bonds of matrimony on statutory ground of two years separation. Former appeal 283 N.C. 139.
Plaintiff alleges in his complaint:
1. That he is a resident of Guilford County, North Carolina, and has been resident of the State for more than one year next preceding the filing of this complaint, and that defendant is resident of the State of Illinois.
2. That he and defendant were married in Cook County, Illinois, on 16 February, 1933, and lived together as man and wife until 11 October, 1944, when they separated, and have not since then lived together.
3. That there was one child born during the union, who died shortly after birth.
Defendant, answering the complaint of plaintiff, admits that she is a resident of State of Illinois, that she and plaintiff were married as alleged, and that a child was born of the marriage and has died; but she denies all other allegations, expressly denying that they ever "separated" or lived "separate and apart."
And for further defense and bar to this action, defendant avers, and upon the trial in Superior Court offered evidence tending to show that she has in all respects observed her marital vows, duties and obligations to plaintiff, and has done nothing to justify plaintiff separating himself from her, but that if his absence under the circumstances detailed constitutes legal separation, then such separation and living separate and apart were without her consent or fault, and are the direct result and constituent part of the abandonment and desertion of her by plaintiff without any cause. And defendant expressly pleads abandonment and desertion and the conduct of plaintiff, in manner stated, as a defense and bar to this action.
On the other hand, plaintiff replying to the further defense set up by defendant alleges among other things "that it was agreed between the plaintiff and the defendant at the time of their marriage that they could not and would not live together as husband and wife."
And, upon the trial in Superior Court, plaintiff, as witness for himself? in pertinent part, testified: "I don't complain about her conduct during our marriage, the reason was that I never wanted to marry her in the first place. As far as her conduct toward me, after the marriage, is concerned, I have nothing to complain of on that score except one thing. We never lived together and she wouldn't give me a divorce either, that is what we always argued about . . . As to whether I complain of anything she did, as far as I know, I know of nothing wrong that she has done . . ." Then to these questions by the court, plaintiff answered as shown: "Since you were married have you lived with your wife as man and wife? A. At the date of the marriage, yes, right after that, no. Yes, one day is what I mean . . . You say you stayed with her? A. The night we were married, and that is all. That was until two or three o'clock in the morning."
Again, plaintiff testified: "As to whether she never did agree to the idea we were to get married until the baby was born and then get a divorce, that was my understanding at the time we got married . . ." And again, "As to whether my wife, after our marriage, ever agreed for us to break up, well, we had never lived together. I don't see how she could agree to live apart. As to whether during our marriage she asked me to live with her, yes, continually she wanted me to come back to her." And again, plaintiff testified: "I just didn't want to live with the girl, that is all there is to it."
On the other hand, defendant testified in part: ". . . After we found I was going to have a child, we married. No, I did not agree, at the time I married him, that I would give him a divorce after the child was born. No sir, he did not ask me to do that. No, he did not say anything to me which would cause me to feel that he was not sincere in his affection toward me. The day we were married he told me that he was very happy and hoped I was too . . .," and so on.
The case was submitted to the jury on these issues which the jury answered as shown:
"1. Were the plaintiff and defendant married, as alleged in the complaint? Answer: Yes.
"2. Have the plaintiff and defendant lived separate and apart from each other for two years next preceding the institution of this action, as alleged in the complaint? Answer: Yes.
"3. Has the plaintiff been a resident of the State of North Carolina for a period of six months next preceding the institution of this action? Answer: Yes.
"4. Was the alleged separation between the plaintiff and the defendant caused by the fault of the plaintiff? Answer: No."
Upon the verdict rendered judgment was signed. Defendant appeals therefrom and assigns error.
WINBORNE, J.
Defendant, as appellant, brings up for consideration twenty assignments of error. It is necessary, however, to give express consideration to these:
Assignments of error numbers 1 and 2, based upon exceptions to the denial of defendant's motions aptly made for judgments as of nonsuit, are untellable. The plaintiff having based his ground for divorce upon two years separation, G.S. 50-6, and defendant having averred by way of further defense and bar to this action, in substance, that whatever estrangement between the parties was occasioned by the plaintiff's own wrongful conduct and willful abandonment, the burden rests upon the defendant to establish the defense or defenses set up in the answer and relied upon by defendant. See Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492, where the authorities are cited. Hence motion for judgment as of nonsuit was properly overruled. See Wharton v. Ins. Co., 178 N.C. 135, 100 S.E. 266; Hedgecock v. Ins. Co., 212 N.C. 638, 194 S.E. 86; MacClure v. Casualty Co., 229 N.C. 305, 49 S.E.2d 742; Barnes v. Trust Co., 229 N.C. 409, 50 S.E.2d 2.
In the Barnes case, in opinion by Barnhill, J., it is said: "A judgment of nonsuit is never permissible in favor of the party having the burden of proof upon evidence offered by him."
Moreover, there is no request for peremptory instruction.
However, assignments of error eight, eleven, twelve and thirteen, based upon exceptions of same numbers, taken to portions of the charge of the court to the jury are well taken. These portions of the charge recognize the plea of plaintiff that his marriage to defendant was consummated under the agreement at the time, that they would get married and when the child was born they would then separate and get a divorce. And these portions of the charge permitted the jury, in passing upon the fourth issue, to take into consideration evidence offered by plaintiff in this respect. While it is noted that the record does not show that there was any motion to strike the allegation of the pleading, nor was there objection to the admission of the evidence, the plea and the evidence strike at the very foundation of the social life of the State, and are against public policy, of which the court of its own motion takes judicial notice. Plaintiff may not in this manner exculpate himself from fault after the marriage.
While it is true the portions of the charge to which these assignments relate are in the form of contentions — to which objection does not appear to case been made at the time they were given, and ordinarily an error in stating the contentions of a party should be called to the attention of the court in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence, S. v. Smith, 221 N.C. 400, 20 S.E.2d 360; S. v. Brown, 227 N.C. 383, 42 S.E.2d 402; Williams v. Raines, 234 N.C. 452, 67 S.E.2d 343, it is the law in this State that the trial court should not at any time give an instruction which presents an erroneous view of the law, or an incorrect application of it. See S. v. Hedgepeth, 230 N.C. 33, 51 S.E.2d 914; S. v. Pillow, 234 N.C. 146, 66 S.E.2d 657.
In the Hedgepeth case, in opinion by Barnhill, J., this Court declared: "It is the duty of the court to explain and apply the law to the evidence in the case and set the minds of the jury at rest in respect to the principles of law which should guide them in arriving at a verdict. And so it should not at any time give an instruction, even in the form of a contention, which presents fun erroneous view of the law or an incorrect application thereof."
Moreover, if it be a fact that plaintiff has married under the mistaken impression that he had obtained a valid decree of divorce the fact of such marriage may not inure to his benefit nor work to detriment of defendant in determining whether the alleged separation between plaintiff and defendant was caused by his fault.
And since there must be a new trial and other matters to which exception is taken may not then recur, other assignments of error are not considered.
Let there be a
New trial.