{ "id": 8613810, "name": "W. G. BARKER v. E. P. DOWDY", "name_abbreviation": "Barker v. Dowdy", "decision_date": "1944-12-13", "docket_number": "", "first_page": "742", "last_page": "746", "citations": [ { "type": "official", "cite": "224 N.C. 742" } ], "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": "162 S. E., 766", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N. C., 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626355 ], "opinion_index": 0, "case_paths": [ "/nc/202/0358-01" ] }, { "cite": "79 S. E., 872", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "163 N. C., 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272010 ], "opinion_index": 0, "case_paths": [ "/nc/163/0393-01" ] }, { "cite": "70 S. E., 917", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N. C., 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652893 ], "opinion_index": 0, "case_paths": [ "/nc/154/0556-01" ] }, { "cite": "159 S. E., 363", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623663 ], "opinion_index": 0, "case_paths": [ "/nc/201/0183-01" ] }, { "cite": "221 N. C., 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625940 ], "opinion_index": 0, "case_paths": [ "/nc/221/0046-01" ] }, { "cite": "137 S. E., 174", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217863 ], "opinion_index": 0, "case_paths": [ "/nc/193/0399-01" ] }, { "cite": "191 S. E., 334", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628429 ], "opinion_index": 0, "case_paths": [ "/nc/211/0635-01" ] }, { "cite": "199 S. E., 89", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N. C., 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630339 ], "opinion_index": 0, "case_paths": [ "/nc/214/0317-01" ] }, { "cite": "102 S. E., 769", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656159 ], "opinion_index": 0, "case_paths": [ "/nc/179/0426-01" ] }, { "cite": "176 S. E., 743", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N. C., 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625001 ], "opinion_index": 0, "case_paths": [ "/nc/207/0256-01" ] }, { "cite": "195 S. E., 807", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 255", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627588 ], "opinion_index": 0, "case_paths": [ "/nc/213/0255-01" ] }, { "cite": "135 S. E., 348", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624917 ], "opinion_index": 0, "case_paths": [ "/nc/192/0556-01" ] }, { "cite": "223 N. C., 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601553 ], "opinion_index": 0, "case_paths": [ "/nc/223/0151-01" ] } ], "analysis": { "cardinality": 646, "char_count": 11339, "ocr_confidence": 0.456, "pagerank": { "raw": 1.20455598460854e-07, "percentile": 0.5945120738699438 }, "sha256": "3408266a74b4ba23e031772afcdc820de17bb8dd1e3b8abfb6d0ece5d0e0086d", "simhash": "1:677d9b15bfb6a805", "word_count": 1958 }, "last_updated": "2023-07-14T21:53:33.218655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. G. BARKER v. E. P. DOWDY." ], "opinions": [ { "text": "Stacy, C. J.\nThis is the same case that was before us on demurrer to the complaint at the Spring Term, 1943, reported in 223 N. C., 151, 25 S. E. (2d), 404. It is here now on demurrer to the evidence and the validity of the trial.\nDefendant insists that plaintff\u2019s own evidence shows his wife\u2019s estrangement derives from their quarrel in August, 1941; that plaintiff told the officers in January, 1942, \u201cDowdy had been giving him trouble with his wife\u201d for the past six months \u2014 just the length of time following the quarrel \u2014 and that his testimony of remonstrance is too fanciful to support a verdict for alienation of affections. Rose v. Dean, 192 N. C., 556, 135 S. E., 348. The evidence suffices, we think, to carry the case to the jury on the first cause of action. Johnston v. Johnston, 213 N. C., 255, 195 S. E., 807; Chestnut v. Sutton, 207 N. C., 256, 176 S. E., 743; Cottle v. Johnson, 179 N. C., 426, 102 S. E., 769.\nWe are constrained to agree with the defendant, however, that the evidence is wanting in sufficiency to support a verdict for criminal conversation. S. v. Miller, 214 N. C., 317, 199 S. E., 89; S. v. Woodell, 211 N. C., 635, 191 S. E., 334; S. v. Aswell, 193 N. C., 399, 137 S. E., 174., It does no more than raise a suspicion, which is explained by the defendant\u2019s evidence. Pollard, v. Pollard, 221 N. C., 46, 19 S. E. (2d), 1; Walker v. Walker, 201 N. C., 183, 159 S. E., 363; Dowdy v. Dowdy, 154 N. C., 556, 70 S. E., 917. If tbe failure to testify under tbe circumstances bere disclosed affords an inference against tbe defendant, and we bave beld tbat it does, Powell v. Strickland, 163 N. C., 393, 79 S. E., 872, Walker v. Walker, supra, tben tbe fact tbat be goes on tbe stand and explains tbe suspicious circumstances would avoid sucb inference or remove any unfavorable impression tbat might arise from tbe failure to testify.\nTbis necessitates a new trial on tbe first cause of action, because tbe first and second issues were submitted jointly to tbe jury, and tbe 3rd, 4tb and 5tb issues would need to be reconsidered after elimination of tbe second issue. Hankins v. Hankins, 202 N. C., 358, 162 S. E., 766; 27 Am. Jur., 129.\nOn first cause of action, New trial.\nOn second cause of action, Reversed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "M. (?. Boyette and H. F. Seawall, Jr., for plaintiff, appellee.", "X. R. Hoyle and S. R. Hoyle for defendant, appellant." ], "corrections": "", "head_matter": "W. G. BARKER v. E. P. DOWDY.\n(Filed 13 December, 1944.)\n1. Husband and Wife \u00a7\u00a7 34, 40\u2014\nIn a civil action\" for damages against defendant for alienation of plaintiff\u2019s wife\u2019s affections and for criminal conversation, where plaintiff\u2019s evidence tended to show that he was a tenant farmer with a large family and on satisfactory terms with his wife until they moved, at her instance, to a farm of defendant, in a different county, not far from the town where defendant lived and was in business, when immediately defendant began paying attentions to plaintiff\u2019s wife, who would go off with defendant in his automobile, take the children to the moving pictures and leave them there to meet her later at defendant\u2019s store, that defendant would come out to plaintiff\u2019s house often without a reason and gave plaintiff\u2019s wife presents and was seen once to kiss her, that plaintiff remonstrated with defendant and the nest year removed to another county in consequence, his wife remaining with several of their children on defendant\u2019s farm; and defendant and plaintiff\u2019s wife denying all misconduct by their testimony, explaining innocently .their automobile trips as on business for plaintiff and with his knowledge and that the children were left at the movies while the wife shopped, and all three parties showing evidence of good character, there is sufficient evidence to go to the jury on alienation, but all of the evidence is insufficient to support a verdict for criminal conversation.\na. Husband and Wife \u00a7 39\u2014\nAs a failure to testify, in a case of alienation of affections and for criminal conversation, affords an inference against the defendant, the fact that he goes on the stand and explains suspicious circumstances will avoid such inference.\nAppeal by defendant from Gwyn, J., at February Term, 1944, of Moore.\nCivil action for alienation of plaintiff\u2019s wife\u2019s affections, and for criminal conversation.\nTbe plaintiff is 47 years of age; bis wife 45. Tbey were married 24 December, 1918, and have bad 12 children; 11 now living, tbe oldest 24 and tbe youngest 6. In 1940 tbey were tenants on Dr. Lynn Mclver\u2019s farm, and their second oldest son operated a filling station for tbe defendant across tbe street from defendant\u2019s market in Sanford. In February, 1941, tbe plaintiff and bis family moved to the defendant\u2019s farm, three or four miles from Sanford, and operated it as tenants during that year. The plaintiff\u2019s wife made the arrangements for the renting of the farm, as the plaintiff was then working temporarily as a carpenter at Fort Bragg.\nOn 1 January, 1942, the plaintiff moved to Moore County with his children, except Odell, the oldest son, and two small daughters, who, with their mother, remained on the Dowdy farm during the crop season of 1942, and until Odell was drafted into the Army. Odell rented the defendant\u2019s farm during the 1942 season, and some time during the year his 15-year-old brother, Claude, returned and stayed with their mother. The plaintiff and his wife are not now living together, and have not lived together since the plaintiff moved to Moore County.\nThe defendant is 48 years of age and has a large family, a wife- and 9 children. He lives with his family in Sanford and runs a meat market and carries on an active slaughtering, cattle and hog business at his farm. In connection with his market he sells groceries, apples, cabbages and other produce. He also owns a blacksmith shop, and has an office on the basement floor of the Seymour Building, or Johnson Furniture Company Building, which is located on one of the principal streets in the town of Sanford.\nThe plaintiff\u2019s evidence tends to show that before he moved to defendant\u2019s farm, his wife seemed satisfied and their relations were entirely congenial; that immediately thereafter her attitude changed, both towards him and their children; that the defendant often came to plaintiff\u2019s home, \u201clots of times when he didn\u2019t have any business\u201d; that he was around with plaintiff\u2019s wife, talking to her, and from time to time, they left the house together; that frequently they were away in defendant\u2019s automobile for several hours, without plaintiff\u2019s knowledge or consent, and that on numerous occasions the defendant brought to plaintiff\u2019s home apples and chewing gum which he gave to plaintiff\u2019s wife and children. He also gave plaintiff\u2019s wife a cow and a pig.\nPlaintiff\u2019s 18-year-old daughter, Dorothy May, testified that on one occasion just before her father moved away, she saw \u201cDowdy kiss Mama\u201d in the sitting room. On another occasion, in December, 1941, \u201che asked Mama to go to the slaughter pen with him, and they went' out across the pasture and when they were out of sight I happened to glance over there and they were holding hands.\u201d (Cross-examination.) The day they walked to the slaughter pen, \u201cthey were not in the woods or anything of that sort. It is a clear open space around the house. . . . There were some eleven of us around there. . . . My father wasn\u2019t at the house; he might have been on the place. . . . The children were out there playing and they went where they were and they all came back together.\u201d\nPlaintiff\u2019s wife on three or four occasions went to Sanford with two or three of the children, ostensibly to attend a picture show, but instead she would place the children in the theatre and advise them to meet her after the show at the defendant\u2019s store. The children would go to the defendant\u2019s store after the show, without finding their mother, and after waiting an hour or more, \u201cshe would come up in the ear with Mr. \u25a0 Dowdy; nobody else was with them.\u201d The defendant would then take plaintiff\u2019s .wife and children within a short distance of their home, put them out and let them walk the rest of the way. Plaintiff\u2019s wife was often seen with the defendant in his office in Sanford. The plaintiff remonstrated with the defendant, and told him he would \u201cgive up the farm and leave. ... I can\u2019t put up with the way you and my wife are going on. ... You are sorrier than any Negro I ever had anything to do with. . . . Yes, I have seen you sell liquor. ... I could have money too if I sold liquor. ... If you want to carry a woman with you, carry your own wife.\u201d\nAfter leaving the-defendant\u2019s farm, the plaintiff made complaint to the sheriffs of Lee and Moore counties and to the chief of police of Sanford and asked them to help him \u201ccatch his wife. . . . Catch Mr. Dowdy and his wife,\u201d stating that the defendant had been \u201cinterfering with his family for the past six months.\u201d It is in evidence that plaintiff is a man'of good character.\nThe defendant took the stand and also called the plaintiff\u2019s wife as a witness in his behalf. They denied the implications of plaintiff\u2019s evidence; explained that the trips taken were on business, some at the instance of the plaintiff; that the plaintiff knew of the small favors which the defendant showed the plaintiff and his family; that plaintiff\u2019s wife and children were driven near their home on several .occasions and allowed to walk a short distance because of the muddy condition of the road, which fact was reported to the plaintiff by members of his family at the time. They both asserted that Dorothy May Barker was entirely mistaken in her testimony. Defendant specifically denied any suggestion of impropriety or remonstrance on the part of the plaintiff, and contends the plaintiff\u2019s testimony in this respect is wholly unreasonable. Plaintiff\u2019s wife testified that when she left the children in the picture show, she went shopping in Sanford; that at such times as she went into the defendant\u2019s store, or rode alone with him in his car, she went on business connected with the farm.\nEvidence was elicited and offered to the effect that plaintiff\u2019s difficulty with his wife grew out of a quarrel between them in August, 1941, which resulted in physical injury to the wife, causing her to remain in bed\u2014 plaintiff says three days, she says a week.\nThere is evidence of the good character of plaintiff\u2019s wife, and also of the defendant.\nMotion for judgment of nonsuit renewed at the close of all the evidence. Overruled; exception.\nThe jury returned the following verdict:\n\u201c1. Did the defendant, E. P. Dowdy, wrongfully alienate the affections of the plaintiff\u2019s wife, as alleged in the complaint? Answer: Yes.\n\u201c2. Did the defendant, E. P. Dowdy, have immoral relations with the plaintiff\u2019s wife, as alleged in the complaint? Answer: Yes..\n\u201c3. Were the wrongful acts of defendant malicious? Answer: Yes.\n\u201c4. What amount of actual damages, if any, is the plaintiff entitled to recover of the defendant, E. P. Dowdy? Answer: $5,000.00.\n\u201c5. What amount of punitive damages, if any, is the plaintiff entitled to recover from the defendant, E. P. Dowdy? Answer : $2,500.00.\u201d\nWith the consent of the plaintiff, the court reduced the amount of actual damages to $4,000, and the amount of punitive damages to $1,500, and entered judgment accordingly.\nDefendant appeals, assigning errors.\nM. (?. Boyette and H. F. Seawall, Jr., for plaintiff, appellee.\nX. R. Hoyle and S. R. Hoyle for defendant, appellant." }, "file_name": "0742-01", "first_page_order": 790, "last_page_order": 794 }