Campbell v. Campbell

Court of Appeals of North Carolina

Campbell v. Campbell

197 S.E.2d 804, 18 N.C. App. 665, 1973 N.C. App. LEXIS 1973

CourtCourt of Appeals of North Carolina

DecidedJuly 11, 1973

DocketNo. 7322DC347

StatusPublished

This text of 197 S.E.2d 804 (Campbell v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Campbell v. Campbell, 197 S.E.2d 804, 18 N.C. App. 665, 1973 N.C. App. LEXIS 1973 (N.C. Ct. App. 1973).

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Opinion

VAUGHN, Judge.

Defendant’s assignments of error directed against the charge are well taken.

Plaintiff alleged and offered evidence tending to show that she left the home because of the indignities heaped upon her person by defendant. It was also necessary for her to satisfy the jury that such acts by her husband were not the result of adequate provocation on her part. The judge’s failure to so instruct the jury constituted prejudicial error and requires a new trial. Howell v. Howell, 223 N.C. 62, 25 S.E. 2d 169; Barker v. Barker, 232 N.C. 495, 61 S.E. 2d 360. The relative fault of the parties must be weighed. Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917.

We also hold that the judge failed to declare and explain the law arising on the evidence as required by G.S. 1A-1, Rule 51(a). A charge which contains a general explanation of the law but fails to apply the law to the evidence given in the case then being tried is insufficient. We specifically observe that the jury was not instructed as to the legal principles applicable to defendant’s evidence, if they found it to be true.

New trial.

Judges Brock and Baley concur.

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VAUGHN, Judge.

Defendant’s assignments of error directed against the charge are well taken.

Plaintiff alleged and offered evidence tending to show that she left the home because of the indignities heaped upon her person by defendant. It was also necessary for her to satisfy the jury that such acts by her husband were not the result of adequate provocation on her part. The judge’s failure to so instruct the jury constituted prejudicial error and requires a new trial. Howell v. Howell, 223 N.C. 62, 25 S.E. 2d 169; Barker v. Barker, 232 N.C. 495, 61 S.E. 2d 360. The relative fault of the parties must be weighed. Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917.

We also hold that the judge failed to declare and explain the law arising on the evidence as required by G.S. 1A-1, Rule 51(a). A charge which contains a general explanation of the law but fails to apply the law to the evidence given in the case then being tried is insufficient. We specifically observe that the jury was not instructed as to the legal principles applicable to defendant’s evidence, if they found it to be true.

New trial.

Judges Brock and Baley concur.

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Bluebook (online)

197 S.E.2d 804, 18 N.C. App. 665, 1973 N.C. App. LEXIS 1973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-campbell-ncctapp-1973.

Opinion

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