{ "id": 8656709, "name": "F. M. ELLETT v. ELIZABETH B. ELLETT", "name_abbreviation": "Ellett v. Ellett", "decision_date": "1911-11-22", "docket_number": "", "first_page": "161", "last_page": "166", "citations": [ { "type": "official", "cite": "157 N.C. 161" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "139 N. C., 409", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "130 N. C., 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272658 ], "opinion_index": 0, "case_paths": [ "/nc/130/0072-01" ] }, { "cite": "116 N. C., 294", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "107 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273236 ], "opinion_index": 0, "case_paths": [ "/nc/107/0273-01" ] }, { "cite": "94 N. C., 532", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "104 N. C., 636", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "80 N. C., 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692181 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/80/0316-01" ] }, { "cite": "24 N. C., 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684372 ], "opinion_index": 0, "case_paths": [ "/nc/24/0055-01" ] }, { "cite": "149 N. C., 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270498 ], "opinion_index": 0, "case_paths": [ "/nc/149/0321-01" ] }, { "cite": "95 N. C., 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274895 ], "opinion_index": 0, "case_paths": [ "/nc/95/0551-01" ] }, { "cite": "132 N. C., 846", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "99 N. C., 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8648993 ], "opinion_index": 0, "case_paths": [ "/nc/99/0030-01" ] }, { "cite": "94 N. C., 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650112 ], "opinion_index": 0, "case_paths": [ "/nc/94/0001-01" ] }, { "cite": "128 N. C., 45", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "123 N. C., 174", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 526, "char_count": 9589, "ocr_confidence": 0.468, "pagerank": { "raw": 3.1147436921296223e-07, "percentile": 0.8602320058041993 }, "sha256": "49dc51104ca45613824362d4e9ff88ca324c42b809762cfa7e56238d5152eb4a", "simhash": "1:c9229583a603886f", "word_count": 1692 }, "last_updated": "2023-07-14T17:57:03.195282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "AlleN, J., concurs in result." ], "parties": [ "F. M. ELLETT v. ELIZABETH B. ELLETT." ], "opinions": [ { "text": "OlaRK, C. J.\nThis is an action for an absolute divorce brought by the husband against the wife. The seventh issue was as follows: \u201c7. Hid the defendant commit adultery with one George B. Gatling, as alleged in the complaint?\u201d On this issue the judge charged: \u201cThe plaintiff must show such adulterous intercourse by evidence which is .clear, cogent, and convincing. If yon find from tbe evidence wbicb is clear, cogent, and convincing that the defendant committed adultery with George B. Gatling, your answer to the seventh issue will be \u2018Yes.\u2019 If not, your answer to the seventh issue will be \u2018No.\u2019 \u201d\nThe exception of the plaintiff to this charge must be sustained. In criminal cases the burden is upon the plaintiff to prove the charge \u201cbeyond a reasonable doubt,\u201d or \u201cto the satisfaction of the jury.\u201d But in civil cases the rule is that the party upon whom lies the burden of proof is called upon to establish his allegation merely \u201cby the preponderance of the evidence.\u201d\nThere are some exceptions to this in matters of an equitable nature, as to which the evidence must be \u201cclear, strong, and convincing.\u201d For instance, when a party asserts and endeavors to prove by parol that a deed which is absolute on its face was in fact a mortgage. 8 Ency. Ev., 714; Watkins v. Williams, 123 N. C., 174; Porter v. White, 128 N. C., 45, and cases cited therein.\nThe same rule as to intensity of proof .applies also where a party seeks the reformation of a written instrument. Ely v. Early, 94 N. C., 1; Kornegay v. Everett, 99 N. C., 30; Hemphill v. Hemphill, ib., 436; Warehouse Co. v. Ozment, 132 N. C., 846. Also, the same intensity of proof is required to prove the terms of a lost will; and there are a few other instances. But they are all cases in which, formerly, the facts would have been found by the chancellor. Ferrall v. Broadway, 95 N. C., 551. Such intensity of proof is not required as to the issues in divorce, which is an action at law. Certainly, it has never been required in this State.\nIt is true that in Kinney v. Kinney, 149 N. C., 321, the judge charged the jury that the evidence of adultery must be \u201cstrong, convincing, and conclusive\u201d; but notwithstanding this erroneous charge, the jury found the'issue \u201cYes,\u201d and therefore there was no appeal by the plaintiff which would have presented the question' as to the correctness of that part of the charge.\nThe plaintiff contends, however, that inasmuch as the jury found \u201cYes\u201d in response to the eighth issue, \u201cDid the plaintiff, before the time of the alleged adultery, maliciously turn the defendant out of doors ?\u201d tbat the error in the instruction as to the intensity of the proof on the seventh issue was harmless error. But this proposition is neither good law nor good morals. There is no legal or moral reason why a woman who has been abandoned by her husband shall be privileged to commit adultery any more than if she were a widow or a single woman. It is true tbat prior to the act of 1872, now Revisal, 1561 (2), such was deemed the law in this State (Moss v. Moss, 24 N. C., 55), and that the same was practically reiterated after that act in Tew v. Tew, 80 N. C., 316; but as was strongly intimated in Steel v. Steel, 104 N. C., 636, the latter decision cannot be sustained, \u201cand was evidently tinged by the restrictive ideas of the older law.\u201d The Court further says, in the latter case, tbat the reason of the former law was tbat.the wife, having no property (which at tbat time all belonged to the husband, as the law .was formerly), might be forced, and probably would be, to form a new connection in order to obtain a support; but now, \u201cunder our statutes of 1869, 1874, 1879, she can compel her husband to provide her adequate support, both for herself and her children.\u201d Steel v. Steel in effect overrules Tew v. Tew on that point.\nNor is an agreement for separation, as formerly, ipso facto void because \u201cagainst law and public policy.\u201d As Smith, C. J., pointed out in Sparks v. Sparks, 94 N. C., 532, the law now recognizes tbe validity, under certain conditions, of such a deed by providing, in Code, sec. 1831, now Revisal, 2116, \u201ctbat every woman living separate from her husband . . . under a deed of separation, executed by said husband and wife and registered . . . shall be deemed and held ... a free trader,\u201d etc. Sparks v. Sparks, supra, has been cited as authority in Smith v. King, 107 N. C., 273; Cram v. Cram, 116 N. C., 294. Besides, under Code, sec. 1292, now Revisal, 1567, the wife who has been abandoned or deserted by her husband can sue for a support for herself and children without asking for a divorce. Cram v. Cram, 116 N. C., 294; Skittletharpe v. Skittletharpe, 130 N. C., 72; Bidwell v. Bidwell, 139 N. C., 409.\nOur older authorities, therefore, which made the adultery of the wife committed after desertion or abandonment by her husband no ground for divorce, are without the reason which gave support to such rulings. They have now as little support in law as they ever had in morals.\nThe remedy which the statute gives to a wife abandoned or deserted by her husband is-alimony and divorce a mensa et thoro. It does not privilege either one to commit adultery. If she does, the husband is entitled to a divorce. This was .the ecclesiastical law. Nelson on Divorce, sec. 430. His wrong does not authorize her to commit a greater one. She can go back to live with him after his desertion; but he cannot be required to live with her after her adultery. The American decisions are conflicting, being based upon statutes of varying tenor.\nBesides, in this case, the husband placed the wife in a sanitarium for the cure of- her habit of drunkenness, and paid her or for her benefit, regularly, $50 per month for her support under the agreement of separation. He also paid her $400 per year rent for a home worth $5,000, which he had given her, and supported the children himself. She was not therefore subjected to temptation by the necessity of procuring a support, which was the reason for the rulings of the Court in Tew v. Tew, 80 N. C., 316, and cases prior thereto.\nIt may be that on another trial the .jury will again find the wife was not guilty, but the plaintiff is entitled to a .new trial to the end that the issue may be submitted under proper instructions as to the intensity of proof required to establish the charge.\nError.\nAlleN, J., concurs in result.", "type": "majority", "author": "OlaRK, C. J." }, { "text": "Hoke, J.,\nconcurring in the result: I concur in the decision awarding a new trial in this case for the error in the charge of the court on the degree of, proof required to establish the seventh issue, and it may be that there are no facts amounting to legal evidence tending to show that plaintiff maliciously turned defendant out of doors. I do not agree to the position, \u2022however, nor do I think that it has the support of any autho,r-itative decision, that a husband who has wrongfully abandoned his wife may successfully maintain an action for divorce a vin-culo on account of her adultery. Under a long line of well-considered precedents, relief in such case was denied, not because the act of the wife was justifiable \u2014 it was never so regarded\u2014 but because the husband, on account of his own conduct in wrongfully withdrawing his association and protection from the wife, was not in a position to ask relief from the court. Neither the moral nor the legal -aspect of this position, is changed because the wife may, under certain conditions, now obtain alimony. The doctrine and the principle upon which it rests lie deeper and, in my opinion, should now and always prevail.", "type": "concurrence", "author": "Hoke, J.," } ], "attorneys": [ "F. L. Fuller, C. 0. McMichael, A. D. Ivie,-and W. P. Bynum for plaintiff.", "A. L. Brooks for defendant." ], "corrections": "", "head_matter": "F. M. ELLETT v. ELIZABETH B. ELLETT.\n(Filed 22 November, 1911.)\n1. Divorce, Absolute \u2014 Adultery of Wife \u2014 Burden of Proof \u2014 Actions at Law.\nWhile in certain instances of an equitable nature there is a requirement that the proof be \u201cclear, strong, and convincing,\u201d and in criminal cases the State must prove its charge \u201cbeyond a reasonable doubt,\u201d this intensity of proof is not required in an action for absolute divorce brought by the husband on the ground of the wife\u2019s adultery, the action being one at law. and only requiring proof of the act by the preponderance of the evidence.\n2. Divorce, Absolute \u2014 Adultery of Wife \u2014 Abandonment by Husband \u2014Harmless Error \u2014 Instructions.\nIn an action for absolute .divorce brought by the husband on the ground of the wife\u2019s adultery, a finding by the jury that before the time of the adultery the plaintiff had maliciously turned his wife out of doors, does not render harmless an instruction erroneously imposing upon the plaintiff the burden of showing the act of the wife\u2019s adultery by \u201cclear, strong, and convincing proof.\u201d\n3. Divorce, Absolute \u2014 Wife\u2019s Adultery \u2014 Abandonment\u2014Interpretation of Statutes.\nUnder our statutes, under certain conditions, an agreement for separation executed by the husband and wife is valid (Revisal, sec. 2116) ; and when abandoned by her husband, the wife may sue for support of herself and children without seeking a divorce (Revisal, sec. 1292). Hence, the doctrine laid down by our older decisions does not in reason apply, which rendered the adulterous conduct of the wife after abandonment no ground for divorce, especially, as in this case, where the husband under an agreement of separation was supporting his wife at the time of her alleged acts of adultery.\nAppeal by plaintiff from W. J. Adams, J., at February Term, 1911, of RockiNgi-iam.\nThe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Cla/i'k.\nF. L. Fuller, C. 0. McMichael, A. D. Ivie,-and W. P. Bynum for plaintiff.\nA. L. Brooks for defendant." }, "file_name": "0161-01", "first_page_order": 201, "last_page_order": 206 }