Connor, L
Iiis Honor’s instructions are based upon certain legal propositions which are challenged by the defendants’ exceptions. They are: that, if the wife separated herself from her husband without his consent her sister and brother-in-law become liable to an action for damages on the part of the husband, if, after being forbidden to do so, they permit or allow her to remain in their home, unless they can show affirmatively that the wife was justified in separating from her husband. The jury by their verdict on the first issue excluded any suggestion that defendants alienated her affections or enticed her away from her husband. His Honor» eliminates from the consideration of the jury any question as to the relationship of the defendants to the wife, or motive with which they allowed her to [152] remain in their home, or- active interference with her movements by advice or counsel. In the view of his Honor the plaintiff’s cause of action accrued when the defendants failed, after being notified by the husband, to compel his wife to leave their home. The testimony, considered with reference to the instruction in regard to the manner in which the wife originally became an inmate of the defendants’ home, etc., could only be considered by the jury upon the second issue to ascertain whether they permitted her to remain after being forbidden to do so, and whether they were justified in doing so.
The testimony of the plaintiff is that he permitted his wife to live with defendants without paying board, compensating them by helping her sister with her work. It seems that the husband, having been unfortunate in his business, found it desirable to leave his home to seek employment. The wife begins a correspondence with him indicating affection and attachment. After some time she writes him a letter which he says troubled him and brought him home. The contents of this letter are not given, but it is said by him related to his indebtedness. When he gets home his wife meets him and something is said about going to ride. The testimony in regard to the meeting and the incidents of the first night is conflicting. It appears, however, he slept at defendants’ house, but not in the same room with his wife. On the next day his wife writes him a letter saying that she has decided not to return to him unless he changes his mode of life, etc. He at once went to see her, ánd in the presence of Mrs. Benthall talked the matter over with her — she repeating her purpose to separate from him. Something was said about dividing their personal property. Plaintiff after this took out process for the possession of the property and went to defendants’ house with the officer. His wife was in her morning wrapper, and the scene occurred as detailed in [153] the evidence. lie took her to his father’s for two days and nights during which time they lived as man and wife. After attending a trial before the Justice, the wife, in a buggy with her brother, returned to defendants’ house and remained until December, when plaintiff wrote a letter t.o defendant Benthall forbidding him to “harbor, give employment or shelter his wife, stating that he was ready, willing and able to care for her.” It was also in evidence that he had posted public notices forbidding other persons doing so. It was in evidence on the part of the defendants that upon receipt of the letter he said to plaintiff’s wife that she must move— to which she responded that if they would not let her stay she must go somewhere else; that she would live in a hollow tree before she would live with her husband. The defendant testified: “Mrs. Powell was my wife’s sister and after this I could not drive her from my house.” Mrs. Ben-thall and Mrs. Powell testify to substantially the same facts — all of them testifying that defendants did not at any time advise or counsel her to separate, or to continue to remain away from her husband. It was in evidence that the plaintiff had no home to which he could carry his wife, nor any means with which to support her. Except on the occasion referred to there was no evidence of cruelty on the part of the husband. We should be reluctant to excuse or justify the conduct of either husband or wife, or of third persons, encouraging separation or withdrawal of marital rights or refusal to recognize or discharge marital duties. We should adhere strictly to the wise and salutary principles announced and enforced by the great judges who have preceded us, as essential to the sanctity of this relation which forms the basis of our social and domestic life. On the other-hand we should be equally reluctant to adhere to the conceptions of a past age regarding the status of the wife and the power of the husband over her person and conduct.' We [154] fully sympathize with the statement made in "A Century of Law Reform ” that there is no branch or department of the law in which the change has been gréater or the contrast more violent. It is not necessary to cite decisions of this Court to show that our predecessors have recognized and given expression to the change of public conscience and policy in this respect. Thirty years ago, this Court, speaking by Settle, J., said: “We may assume that the old doctrine that a husband has a right to whip his wife provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position that the husband has no right to chastise his wife under any circumstances.” State v. Oliver, 70 N. C., 60. In 1891 Lord Chancellor Halsburg, in Reg. v. Jackson, 1 L. R. Q. B. D., 671, said: “The Court has satisfied itself that in refusing to go and continue in her husband’s house (the petitioner) was acting of her own free-will and that she is not compelled or induced by any one to refuse to continue to remain where she was before he removed her. I confess that some of the propositions which have been referred to during the argument are such as I should be reluctant to suppose ever to have been the law of England. * * * In the same way such quaint and absurd dicta as are to be found in the books as to the right of the husband over his wife in respect of personal chastisement, are not, I think, capable of being cited as authorities in a court of justice in this or any civilized country.” He says: “The return seems to me to be based on the broad proposition that it is the right of the husband when his wife has willfully absented herself from him to seize the person of his wife by force and detain her in his house until she shall be willing to restore him to his conjugal rights. I am not prepared to assent to such a proposition.” In this case opinions were written by the Master of the [155] Eolls, and Fry, L. J., concurring with the Chancellor. The case is regarded as the latest and best judicial expression of the law conforming to the sentiment of the most enlightened statesmen and jurists of the age. So far back as 1791, Lord Kenyon, who certainly was not a radical judicial reformer, said in Phillips v. Squire, Peake Eep., 82: “The ground of this action is that the defendant retains the plaintiff's wife against the inclination of her husband, whose behavior he knows to be proper; or from selfish or criminal motives. But where she is received from principles of humanity the action cannot be supported. If it could, the most dangerous' consequences would ensue, for no one would venture to protect a married woman. It is of no consequence whether the wife’s representation was true or false. This kind of action materially differs from that of
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Connor, L
Iiis Honor’s instructions are based upon certain legal propositions which are challenged by the defendants’ exceptions. They are: that, if the wife separated herself from her husband without his consent her sister and brother-in-law become liable to an action for damages on the part of the husband, if, after being forbidden to do so, they permit or allow her to remain in their home, unless they can show affirmatively that the wife was justified in separating from her husband. The jury by their verdict on the first issue excluded any suggestion that defendants alienated her affections or enticed her away from her husband. His Honor» eliminates from the consideration of the jury any question as to the relationship of the defendants to the wife, or motive with which they allowed her to [152] remain in their home, or- active interference with her movements by advice or counsel. In the view of his Honor the plaintiff’s cause of action accrued when the defendants failed, after being notified by the husband, to compel his wife to leave their home. The testimony, considered with reference to the instruction in regard to the manner in which the wife originally became an inmate of the defendants’ home, etc., could only be considered by the jury upon the second issue to ascertain whether they permitted her to remain after being forbidden to do so, and whether they were justified in doing so.
The testimony of the plaintiff is that he permitted his wife to live with defendants without paying board, compensating them by helping her sister with her work. It seems that the husband, having been unfortunate in his business, found it desirable to leave his home to seek employment. The wife begins a correspondence with him indicating affection and attachment. After some time she writes him a letter which he says troubled him and brought him home. The contents of this letter are not given, but it is said by him related to his indebtedness. When he gets home his wife meets him and something is said about going to ride. The testimony in regard to the meeting and the incidents of the first night is conflicting. It appears, however, he slept at defendants’ house, but not in the same room with his wife. On the next day his wife writes him a letter saying that she has decided not to return to him unless he changes his mode of life, etc. He at once went to see her, ánd in the presence of Mrs. Benthall talked the matter over with her — she repeating her purpose to separate from him. Something was said about dividing their personal property. Plaintiff after this took out process for the possession of the property and went to defendants’ house with the officer. His wife was in her morning wrapper, and the scene occurred as detailed in [153] the evidence. lie took her to his father’s for two days and nights during which time they lived as man and wife. After attending a trial before the Justice, the wife, in a buggy with her brother, returned to defendants’ house and remained until December, when plaintiff wrote a letter t.o defendant Benthall forbidding him to “harbor, give employment or shelter his wife, stating that he was ready, willing and able to care for her.” It was also in evidence that he had posted public notices forbidding other persons doing so. It was in evidence on the part of the defendants that upon receipt of the letter he said to plaintiff’s wife that she must move— to which she responded that if they would not let her stay she must go somewhere else; that she would live in a hollow tree before she would live with her husband. The defendant testified: “Mrs. Powell was my wife’s sister and after this I could not drive her from my house.” Mrs. Ben-thall and Mrs. Powell testify to substantially the same facts — all of them testifying that defendants did not at any time advise or counsel her to separate, or to continue to remain away from her husband. It was in evidence that the plaintiff had no home to which he could carry his wife, nor any means with which to support her. Except on the occasion referred to there was no evidence of cruelty on the part of the husband. We should be reluctant to excuse or justify the conduct of either husband or wife, or of third persons, encouraging separation or withdrawal of marital rights or refusal to recognize or discharge marital duties. We should adhere strictly to the wise and salutary principles announced and enforced by the great judges who have preceded us, as essential to the sanctity of this relation which forms the basis of our social and domestic life. On the other-hand we should be equally reluctant to adhere to the conceptions of a past age regarding the status of the wife and the power of the husband over her person and conduct.' We [154] fully sympathize with the statement made in "A Century of Law Reform ” that there is no branch or department of the law in which the change has been gréater or the contrast more violent. It is not necessary to cite decisions of this Court to show that our predecessors have recognized and given expression to the change of public conscience and policy in this respect. Thirty years ago, this Court, speaking by Settle, J., said: “We may assume that the old doctrine that a husband has a right to whip his wife provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position that the husband has no right to chastise his wife under any circumstances.” State v. Oliver, 70 N. C., 60. In 1891 Lord Chancellor Halsburg, in Reg. v. Jackson, 1 L. R. Q. B. D., 671, said: “The Court has satisfied itself that in refusing to go and continue in her husband’s house (the petitioner) was acting of her own free-will and that she is not compelled or induced by any one to refuse to continue to remain where she was before he removed her. I confess that some of the propositions which have been referred to during the argument are such as I should be reluctant to suppose ever to have been the law of England. * * * In the same way such quaint and absurd dicta as are to be found in the books as to the right of the husband over his wife in respect of personal chastisement, are not, I think, capable of being cited as authorities in a court of justice in this or any civilized country.” He says: “The return seems to me to be based on the broad proposition that it is the right of the husband when his wife has willfully absented herself from him to seize the person of his wife by force and detain her in his house until she shall be willing to restore him to his conjugal rights. I am not prepared to assent to such a proposition.” In this case opinions were written by the Master of the [155] Eolls, and Fry, L. J., concurring with the Chancellor. The case is regarded as the latest and best judicial expression of the law conforming to the sentiment of the most enlightened statesmen and jurists of the age. So far back as 1791, Lord Kenyon, who certainly was not a radical judicial reformer, said in Phillips v. Squire, Peake Eep., 82: “The ground of this action is that the defendant retains the plaintiff's wife against the inclination of her husband, whose behavior he knows to be proper; or from selfish or criminal motives. But where she is received from principles of humanity the action cannot be supported. If it could, the most dangerous' consequences would ensue, for no one would venture to protect a married woman. It is of no consequence whether the wife’s representation was true or false. This kind of action materially differs from that of harboring an apprentice, the ground of that action being the loss of apprentice’s services.” The plaintiff was nonsuited.
In Turner v. Estes, 3 Mass., 317, the Court said: “The defendant is charged with enticing the plaintiff’s wife. No evidence was given at the trial of any enticing. As to the charge of harboring, the sum of the evidence is that the defendant permitted his wife’s mother to remain in his house without using force to expel her. He was not obliged to use force.” These authorities fully sustain the defendant’s exception to the charge. We think that his ILonor was also in error in placing upon the defendants the burden of shpwing justification. Barnes v. Allen, 40 N. Y., 390. The learned Justice says: “The gist of the action, as all the authorities agree, is the loss without justifiable cause of the comfort, society and services of the wife. In maintaining the action two questions principally arise: Was the loss occasioned by the voluntary action of the wife upon justifiable cause, or was it occasioned by the acts or persuasion of the defendant without'any real cause and in bad faith towards the plaintiff ? [156] On both these questions the plaintiff must give evidence tending to establish his case or his action must fail.” The error in the instruction, in this particular, is that it overlooks entirely the motives and casts the burden of proving the truth of the wife’s statement upon the defendant. We are further of the opinion that his Honor erred in telling the jury that they could not consider the relation of the defendants to the plaintiff’s wife. Upon the question of good faith the relationship was most material. It cannot be that a sister and her husband are to be treated as officious intermeddlers and wrong-doers for giving food and shelter to plaintiff’s wife and permitting her to remain in their home. We do not intend to say that if it appeared that they actively procured the separation, or counseled and advised of its continuance, they would not be liable — but where the question of motive is essential to be shown, the relationship is not only relevant but most material. After a careful examination of the testimony, we fail to see any evidence fit to be submitted to the jury to sustain the affirmative of the issue. In view of all the evidence, we think his Honor should have given the instruction asked upon the second issue. He could not have dismissed the action pending the trial upon the first issue. The finding upon that issue practically put an end to the case. The plaintiff relied upon the case of Johnson v. Allen, 100 N. C., 131. That was a case in which the plaintiff sued for “enticing, harboring and debauching” his wife. The testimony was ample to sustain the allegation. The language of the Court must be taken in the light of the testimony. There is a vast difference between the case of a man who entices another man’s wife away from him and debauches her and the facts in this case. The conclusion to which we have arrived renders it unnecessary to pass upon the exceptions of the defendants’ counsel in regard to the form of the issue and the verdict. It is not improper to say, however, that in the light of what is said in [157] Pearce v. Fisher, 133 N. C., 333, the exception should be sustained. For the error pointed out there must be a
New Trial.