Mason v. . Mason

40 S.E.2d 204, 226 N.C. 740, 1946 N.C. LEXIS 319

• Court: Supreme Court of North Carolina
• Decided: November 20, 1946
• Status: Published

Opinion

Devin, J.

The plaintiff assigns error in the action of the trial court in submitting to the jury the fourth issue as to whether the separation was due to the fault of the plaintiff. However, in view of the verdict on the third issue, by which it was determined by the jury that the plaintiff and defendant had not lived separate and apart from each other for two years as alleged, tbe ruling of tbe court in tbis respect becomes immaterial.

Tbe evidence offered by tbe defendant was sufficient to support tbe verdict, and to negative tbe conclusion that conjugal relations between husband and wife bad ceased for tbe period prescribed by tbe statute. Young v. Young, 225 N. C., 340, 34 S. E. (2d), 154; Dudley v. Dudley, 225 N. C., 83, 33 S. E. (2d), 489; Byers v. Byers, 222 N. C., 298 (304) ; Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5.

Likewise, tbe exception to tbe judge’s charge, when considered contextually and in tbe light of tbe verdict, cannot be sustained. Controverted issues of fact as to separation and cessation of cohabitation between tbe husband and wife were decided by tbe jury in favor of tbe defendant, and judgment denying tbe plaintiff’s suit for divorce was properly entered. Moody v. Moody, 225 N. C., 89, 33 S. E. (2d), 491; Taylor v. Taylor, 225 N. C., 80, 33 S. E. (2d), 492.

In tbe trial we find

No error.