Martin v. Cress, 210 N.C. 776 (1936)

Nov. 25, 1936 · Supreme Court of North Carolina

210 N.C. 776

J. L. MARTIN v. L. B. CRESS.

(Filed 25 November, 1936.)

Husband and Wife F a—

Testimony of the husband as to conversations between himself and his wife tending to show the relations between her and the defendant in a suit for alienating her affections is properly excluded as hearsay.

Appeal by plaintiff from. Harding, J., at May Term, 1936, of MecicleNbueg.

No error.

This is an action for tbe alienation by tbe defendant of tbe affections of plaintiff’s wife.

Issues raised by tbe pleadings and submitted to tbe jury were answered adversely to tbe contentions of tbe plaintiff.

From judgment that be recover nothing by bis action, tbe plaintiff appealed to tbe Supreme Court, assigning as error tbe exclusion by tbe trial court of testimony offered by tbe plaintiff as evidence.

Carswell <& Ervin and William Winter for plaintiff.

Kirkpatrick & Kirkpatrick for defendant.

Per Curiam.

On bis appeal to this Court, the plaintiff contends that there was error in the trial of this action in the exclusion by the trial court of testimony by the plaintiff as to conversations between him and bis wife, with respect to conversations between her and the defendant, tending to show her relations with him. In support of this contention, the plaintiff cites and relies upon Cottle v. Johnson, 179 N. C., 426, 102 S. E., 769. In that case it was held that testimony by the plaintiff as to conversations between him and bis wife were competent as evidence tending to show their relations to each other, both before and after their separation. In the instant case the testimony of the plaintiff was properly excluded as hearsay. The court was mindful of the caution contained in the opinion in the cited case. The distinction between the instant case and the cited case is obvious.

The contention of the plaintiff cannot be sustained. There was no error in the trial. The judgment is affirmed.

No error.