Ridenhour v. . Miller

Denny, J. The disposition of this appeal turns upon whether or not plaintiff introduced sufficient evidence to entitle him to have his case submitted to a jury. Upon the institution of this action against the defendants, alleging the affections of his wife had been alienated by them, the law imposed upon him the burden of showing, by competent evidence, the following: (1) That he and his wife were happily married, and that a genuine love and affection existed between them; (2) that the love and affection so existing was alienated and destroyed; (3) that the wrongful and malicious acts of the defendants produced and brought about the loss and alienation of such love and affection. Hankins v. Hankins, 202 N. C., 358, 162 S. E., 766. *546 In the instant case there is no evidence tending to show that the defendants or either of them advised with or counseled plaintiff’s wife with respect to her marital relationship prior to the separation. The evidence discloses that these defendants did give Mrs. Ridenhour, who is their sister, substantial gifts. Some of the gifts were for her personally, some for the children, others were for the use and benefit of the family. However, at the time these gifts were made, the plaintiff assigned no ulterior motive on the part of these defendants. He testified, “I did not object to Mrs. Kluttz and Mrs. Miller helping my wife.” Moreover, there is no allegation in the complaint or evidence adduced in the trial below, to the effect that plaintiff’s wife since the separation-has by her words or conduct intimated a desire to effect a reconciliation with him, or that one might have been made except for the unlawful and malicious interference of these defendants. Townsend v. Holderby, 197 N. C., 550, 149 S. E., 855; Brown v. Brown, 124 N. C., 19, 32 S. E., 320. In fact, we think the record tends to show otherwise. While parents and near relations must act in good faith in dealing with the marital rights of a member of the family, nevertheless they occupy a different position from a stranger in these matters. Johnston v. Johnston, 213 N. C., 255, 195 S. E., 807. Cf. Barker v. Dowdy, 224 N. C., 742, 32 S. E. (2d), 265, and Cottle v. Johnson, 179 N. C., 426, 102 S. E., 769. And the mere fact that these defendants permitted plaintiff’s wife and children to live with them is not sufficient to show bad faith on their part, in view of the family relationship. Townsend v. Holderby, supra; Powell v. Benthall, 136 N. C., 145, 48 S. E., 598. The conduct of these defendants may not have been exemplary towards plaintiff at all times, but plaintiff’s evidence, when taken in the light most favorable to him, is insufficient to show that the alienation of the affections of his wife was brought about wrongfully and maliciously by these defendants. Powell v. Benthall, supra. The exceptions interposed to the refusal of his Honor to admit certain orders of the court, relative to the custody of plaintiff’s children, need not be considered. Had the proffered evidence been admitted it would not have in any way affected our decision. The judgment of nonsuit is Affirmed.