Knighten v. . McClain

Supreme Court of North Carolina

Knighten v. . McClain

44 S.E.2d 79, 227 N.C. 682, 1947 N.C. LEXIS 508

CourtSupreme Court of North Carolina

DecidedSeptember 24, 1947

StatusPublished

Cited by4 cases

This text of 44 S.E.2d 79 (Knighten v. . McClain) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knighten v. . McClain, 44 S.E.2d 79, 227 N.C. 682, 1947 N.C. LEXIS 508 (N.C. 1947).

Pincite

Opinion

Denny, J.

The defendant demurred ore tenus in this Court on the ground that a wife cannot maintain an action against another for criminal conversation with her husband and the alienation of his affections. The demurrer cannot be sustained.

We concur in what was said in Hinnant v. Power Co., 189 N. C., 120, 126 S. E., 307, with respect to the right of a wife to maintain an action of this character, as follows: “Whatever her former status may have been, the doctrine of marital equality now clothes her substantially with similar relative rights, from which it follows that for a direet and intentional invasion of the right of consortium such as criminal conversation, alienation of affection, or the inhibited sale of narcotic drugs, an action now lies in favor of the husband or the wife.”

The defendant assigns as error the admission of testimony by the plaintiff, over defendant’s objection, relative to statements made to the plaintiff by her husband, which statements tended to show his illicit relationship with the defendant. The admission of this evidence was error. The statute, G. S., 8-56, among other things, provides: “Nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage) ; or in any action or proceeding for or on account of criminal conversation, except that in actions of criminal conversation brought by the husband in which the character of the wife is assailed she shall be a competent witness to testify in refutation of such charges.”

Declarations of plaintiff’s husband as to his improper relationship with the defendant are incompetent as evidence for plaintiff in this *684 action. Grant v. Mitchell, 156 N. C., 15, 71 S. E., 1087; McCall v. Galloway, 162 N. C., 353, 78 S. E., 429, and what is said in Hyatt v. McCoy, 194 N. C., 762, 140 S. E., 807, as to the admission of such evidence for some purposes, will not be held to modify this rule.

The defendant is entitled to a new trial, and it is so ordered.

New trial.

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Denny, J.

The defendant demurred ore tenus in this Court on the ground that a wife cannot maintain an action against another for criminal conversation with her husband and the alienation of his affections. The demurrer cannot be sustained.

We concur in what was said in Hinnant v. Power Co., 189 N. C., 120, 126 S. E., 307, with respect to the right of a wife to maintain an action of this character, as follows: “Whatever her former status may have been, the doctrine of marital equality now clothes her substantially with similar relative rights, from which it follows that for a direet and intentional invasion of the right of consortium such as criminal conversation, alienation of affection, or the inhibited sale of narcotic drugs, an action now lies in favor of the husband or the wife.”

The defendant assigns as error the admission of testimony by the plaintiff, over defendant’s objection, relative to statements made to the plaintiff by her husband, which statements tended to show his illicit relationship with the defendant. The admission of this evidence was error. The statute, G. S., 8-56, among other things, provides: “Nothing herein shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage) ; or in any action or proceeding for or on account of criminal conversation, except that in actions of criminal conversation brought by the husband in which the character of the wife is assailed she shall be a competent witness to testify in refutation of such charges.”

Declarations of plaintiff’s husband as to his improper relationship with the defendant are incompetent as evidence for plaintiff in this *684 action. Grant v. Mitchell, 156 N. C., 15, 71 S. E., 1087; McCall v. Galloway, 162 N. C., 353, 78 S. E., 429, and what is said in Hyatt v. McCoy, 194 N. C., 762, 140 S. E., 807, as to the admission of such evidence for some purposes, will not be held to modify this rule.

The defendant is entitled to a new trial, and it is so ordered.

New trial.

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Bluebook (online)

44 S.E.2d 79, 227 N.C. 682, 1947 N.C. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knighten-v-mcclain-nc-1947.

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