{
  "id": 11271837,
  "name": "CAUSEY ALLRED v. J. WESLEY KIRKMAN",
  "name_abbreviation": "Allred v. Kirkman",
  "decision_date": "1912-11-07",
  "docket_number": "",
  "first_page": "392",
  "last_page": "394",
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      "cite": "160 N.C. 392"
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "157 N. C., 385",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T16:32:58.976002+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "CAUSEY ALLRED v. J. WESLEY KIRKMAN."
    ],
    "opinions": [
      {
        "text": "Walker, J.\nAction by tbe husband for criminal conversation and alienation of bis wife\u2019s affections. Tbe jury returned tbis verdict:\n1. Did tbe defendant carnally know tbe wife of tbe plaintiff, as alleged in tbe complaint? Answer: No.\n2. What damages is plaintiff entitled to recover? No answer.\nJudgment for defendant, and plaintiff appealed.\n1. Defendant proposed to prove by one Mary Nixon \u201cthat tbe plaintiff and bis wife did not get along well together,\u201d but tbe question was not answered, as tbe record discloses. An assignment of error must be based upon matter appearing in tbe case or record to which exception was previously taken. It has been said that, in an action by tbe husband for tbis wrong, bis neglect of bis wife, lack of affection for her, bis indifference or cruelty toward her, and tbe unhappiness of their domes-, tic relations before tbe alleged enticement or seduction may be shown in mitigation of damages. 21 Cyc., 1625 and 1632, citing numerous cases in support of tbe proposition. But we need not decide tbe question, as we do not think it was properly raised. New matter cannot be properly introduced for tbe first time in an assignment of error for tbe purpose of excepting to it, especially when, as in tbis case, tbe assignment does not appear to have received tbe sanction of tbe judge, but is inserted after bis signature to tbe case on appeal. We must be governed by tbe record in such a case, and as it appears from it that tbe question was not answered, there is no ground for tbe exception, an unanswered question not being objectionable. Morse v. Freeman, 157 N. C., 385. In Worley v. Logging Co., 157 N. C., 490, Justice Allen, after stating that an assignment of error must be based upon an exception properly taken, says, at page 499: \u201cTbe preparation of tbe assignment of error is tbe work of tbe attorney for tbe appellant, and is not a part of tbe case on appeal, and its office is to group tbe exceptions noted in tbe case on appeal, and if there is an assignment of error not supported by an exception, it will be disregarded.\u201d\n2. Tbe defendant having been examined as a witness, in bis own behalf, was impeached by tbe plaintiff\u2019s testimony. It was competent for him to prove bis own. declarations, which were consistent with his own evidence, and made before the trial, in corroboration of himself. S. v. Whitfield, 92 N. C., 831; Hooks v. Houston, 109 N. C., 623. The rule is thus stated by the present Chief Justice in Burnett v. R. R., 120 N. C., 517: \u201cIt is competent to corroborate a witness by showing that previously he had made the same statement as to the transaction as that given by him on the trial,\u201d citing many cases in its support.\n3. Defendant offered certain evidence in mitigation of damages, but as the second issue was not reached in the investigation by the jury, the first having been answered in the negative, no harm was done, even if the admission of this testimony was erroneous.\nWe find no error in the case.\nNo' error.",
        "type": "majority",
        "author": "Walker, J."
      }
    ],
    "attorneys": [
      "Morehead & Morehead, Elijah Moffitt, and John T. Brittain for plamdiff.",
      "Hammer & Kelly and J. A. Spence for defendant."
    ],
    "corrections": "",
    "head_matter": "CAUSEY ALLRED v. J. WESLEY KIRKMAN.\n(Filed 7 November, 1912.)\n1. Appeal and Error \u2014 Unanswered Questions \u2014 Objections and Exceptions \u2014 Assignments of Error \u2014 New Matter.\nAn unanswered question asked on tbe trial of a cause is not objectionable; and cannot be properly introduced for the first time in an assignment of error for the purpose of excepting to it.\n\u2022 2. Evidence Corroborative \u2014 Declarations of Parties.\nA party to an action may prove his own declarations, which are consistent with his own evidence, and made before the trial, as corroborative evidence.\n3. Issues \u2014 Answer Conclusive \u2014 Second Issue \u2014 Evidence\u2014Harmless Error.\nWhen the jury by their answer to the first issue have determined the action, evidence on the second issue, erroneously excluded, is harmless error.\nAppeal by plaintiff from 0. II. Allen, J., at March Term, 1912, of RANDOLPH.\nTbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walker.\nMorehead & Morehead, Elijah Moffitt, and John T. Brittain for plamdiff.\nHammer & Kelly and J. A. Spence for defendant."
  },
  "file_name": "0392-01",
  "first_page_order": 432,
  "last_page_order": 434
}