Brewer v. Brewer, 198 N.C. 669 (1930)

May 14, 1930 · Supreme Court of North Carolina

198 N.C. 669

IRA BREWER v. DORA BREWER.

(Filed 14 May, 1930.)

1. Divorce D c — Grounds for divorce must toe alleged with particularity, tout in this case held: complaint aided toy answer was sufficient.

The law does not favor divorce and requires that in an action for divorce a mensa the plaintiff must state the circumstances of the alleged acts.upon which this relief is demanded with particularity of detail; but where demurrer is not at first' interposed, and the defendant previously files an answer setting forth such circumstances with the particularity required in such cases, and denies the plaintiff’s allegations in respect thereto, the deficiency of the complaint thus being supplied, the pleadings will be liberally construed with a view to substantial justice between the parties, O. S., 535, 549, and a demurrer then interposed on the ground that the complaint fails to state a cause of action will be denied. O. S., 511(6).

2. Appeal and Error E to — Where evidence is not set out in record, it will toe presumed that evidence was sufficient to support verdict.

Where a party to an action has not objected to the issues submitted by the trial court, and there is no evidence appearing of record on appeal, it will be presumed that there was sufficient evidence on the trial to support the verdict.

3. Divorce B e — Grounds for divorce a mensa are available to husband.

The grounds for divorce a mensa given by C. S., 1660, are available to the husband as well as to the wife, or as stated by the express language of the statute to “the injured party.”

Appeal by defendant from Shaw, J., and a jury, 6 January, 1930. From CabARRus. No error.

The allegations of the complaint are to the effect that plaintiff and defendant are citizens and residents of the State of North Carolina, and that plaintiff has been a resident for more than two years next preceding the commencement of this action. That plaintiff and defendant are man and wife, duly married on or about 5 March, 1921; that they lived together as man and wife until about June, 1928, when plaintiff separated himself from defendant for the causes hereinafter set out, and has since lived separate and apart from ber; tbat be bad to separate bimself from defendant on account of cruel and barbarous treatment inflicted by defendant on plaintiff, viz.: (1) In tbe spring of 1925 tbe defendant inflicted upon plaintiff serious bodily injury by thrusting an ice-pick into bis side about two inches in depth. (2) In January, 1928, defendant threw scalding water on plaintiff. (3) In January, 1928, tbe defendant endangered tbe life of plaintiff by shooting at him with a pistol. (4) Tbat in June, 1928, defendant maliciously turned the plaintiff out of bis home by removing from bis home all of bis wearing apparel and trunk and depositing them in tbe back yard.

Plaintiff further alleges tbat tbe separation from defendant was without fault on bis part, and tbat tbe treatment as above set forth was without cause or provocation on bis part. Plaintiff prays tbe custody of tbe child about four years old, born of tbe union and divorce a mensa et thoro.

Tbe complaint was accompanied by tbe affidavit as required by tbe statute.

Tbe defendant in ber answer denied tbe material allegations of tbe complaint and set up tbe plea of self-defense in regard to tbe charges made by defendant, and minutely set forth in detail all tbe facts, tbe antecedent and attending circumstances tbat caused tbe trouble complained of by plaintiff, and charged tbat plaintiff was in tbe wrong and she was not, and explained tbe wearing apparel and trunk incident. She set up affirmative relief and as a cross-bill against tbe plaintiff alleged tbat plaintiff had abandoned ber and ber infant son and failed to provide ber with necessary subsistence according to bis means and condition in life, and prayed “Tbat a decree be entered dismissing tbe alleged cause of action set up in tbe complaint; tbat she be given tbe custody of ber said child; tbat she be awarded alimony as to tbe court may seem reasonable, and ber maintenance while this action is pending, and for costs, including a reasonable attorney’s fee; tbat she be given all other relief to which she may be entitled.”

Tbe issues submitted to tbe jury and their answers thereto were as follows:

“1. Did tbe defendant by cruel and barbarous treatment endanger tbe life of tbe plaintiff? Answer: Yes.

2. Did tbe defendant offer such indignities to tbe person of tbe plaintiff as to render bis condition intolerable and life burdensome ? Answer: Yes.

3. Did tbe defendant maliciously turn tbe plaintiff out of doors? Answer: Yes.

4. Did tbe plaintiff, on or about tbe. day of May, 1928, abandon tbe defendant and ber infant son and fail to provide them with necessary subsistence, as alleged in paragraph 3 of defendant’s further answer and claim for affirmative relief ? Answer: No.”

Judgment was rendered for plaintiff on the verdict. Defendant assigned errors and appealed to the Supreme Court.

Armjiéld, Sherrin & Barnhart for plaintiff.

Palmer & Blackwelder and S. 8. Williams for defendant.

OlaeksoN, J.

The defendant demurred ore terms after the return of the verdict, and before judgment was signed by the court below, on the ground that “the complaint does not state facts sufficient to constitute a cause of action.”

C. S., 511(6). C. S., 518, in part, is as follows: “If objection is not taken either by demurrer or answer, the defendant waives the same, except the objections to the jurisdiction of the court and that the complaint does not state facts sufficient to constitute a cause of action.”

The law does not favor divorces, and in divorce cases more detail and minuteness is required in the complaint, and it has been held in this jurisdiction that the complaint for divorce from bed and board is insufficient which does not specifically state the circumstances of the alleged acts of cruelty, give time and place and state what was plaintiff’s own conduct and that such acts were without provocation or fault on the part of the plaintiff seeking the divorce. Martin v. Martin, 130 N. C., 27. See cases referred to in Davidson v. Davidson, 189 N. C., at p. 628.

When a defective statement of a good cause of action is alleged, and not a defective cause of action, which is fatal on demurrer, and the complaint is insufficient and a demurrer is filed by the defendant distinctly specifying the grounds of objection under C. S., 512 (Enloe v. Ragle, 195 N. C., 38), the court ordinarily allows the plaintiff to amend to cure the defect. In the present action defendant did not demur on either ground, but answered and set forth the antecedent and attending circumstances minutely and in detail that caused the several disturbances alleged by plaintiff, claiming plaintiff and not she was at fault. This was taken to be denied by plaintiff. C. S., 543. She further prayed for affirmative relief and alimony under C. S., 1667.

The cause came on for trial in the court below. The issues were not objected to by defendant. The evidence is not in the record, but it is presumed that both parties to. the controversy and others testified before the jury in the court below and all the differences were brought out pro and con in detail, all the antecedent and attending circumstances and causes that brought about the troubles that plaintiff complained of and defendant complained of. King v. R. R., 176 N. C., 301; Ricks v. Brooks, 179 N. C., at p. 208-9.

"We think the ease is distinguishable from the Martin case, supra, when considered in the light of the many damaging allegations in the complaint against defendant for divorce, with the allegation that the treatment was without cause or provocation on plaintiff’s part, and the “aider” in the answer, and defendant’s prayer for affirmative relief; the pleadings will be liberally construed “with a view to substantial justice between the parties,” C. S., 535; C. S., 549.

C. S., 1660, is as follows: “The Superior Court may grant divorces from bed and board on application of the party injured, made as by law provided: (1) If either party abandons his or her family, (2) maliciously turns the other out of doors; (3) by cruel and barbarous treatment endangers the life of the other; (4) offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.”

Defendant in her brief says: “The appellant is unable to find a decision of this Court in any action brought under this section of the statute wherein the husband was the plaintiff in the action; and, while the language of the statute would seem to indicate that it affords relief of this nature to husbands against cruel and barbarous treatment on the part of the wife, yet, the appellant doubts that it was ever intended by the Legislature that this statute should operate in favor of the husband.” The statute says on application “of the party injured.” According to the verdict of the jury, what the wife did to the husband, in every day parlance was “a plenty.” If he was not the “party injured,” who could be? The language of the statute is clear and gives the man an equal right which has always been accorded the woman. "We find

No error.