#### W. G. BARKER v. E. P. DOWDY.

(Filed 13 December, 1944.)

1. Husband and Wife §§ 34, 40—

In a civil action" for damages against defendant for alienation of plaintiff’s wife’s affections and for criminal conversation, where plaintiff’s 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’s 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’s store, that defendant would come out to plaintiff’s house often without a reason and gave plaintiff’s 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’s farm; and defendant and plaintiff’s 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.

a. Husband and Wife § 39—

As 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.

Appeal by defendant from *Gwyn, J.,*at February Term, 1944, of Moore.

Civil action for alienation of plaintiff’s wife’s affections, and for criminal conversation.

Tbe 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’s farm, and their second oldest son operated a filling station for tbe defendant across tbe street from defendant’s market in Sanford. In *743February, 1941, tbe plaintiff and bis family moved to the defendant’s farm, three or four miles from Sanford, and operated it as tenants during that year. The plaintiff’s wife made the arrangements for the renting of the farm, as the plaintiff was then working temporarily as a carpenter at Fort Bragg.

On 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’s 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.

The 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.

The plaintiff’s evidence tends to show that before he moved to defendant’s 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’s home, “lots of times when he didn’t have any business”; that he was around with plaintiff’s wife, talking to her, and from time to time, they left the house together; that frequently they were away in defendant’s automobile for several hours, without plaintiff’s knowledge or consent, and that on numerous occasions the defendant brought to plaintiff’s home apples and chewing gum which he gave to plaintiff’s wife and children. He also gave plaintiff’s wife a cow and a pig.

Plaintiff’s 18-year-old daughter, Dorothy May, testified that on one occasion just before her father moved away, she saw “Dowdy kiss Mama” in the sitting room. On another occasion, in December, 1941, “he 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.” (Cross-examination.) The day they walked to the slaughter pen, “they 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’t at the house; he might have been on the place. . . . The children were out *744there playing and they went where they were and they all came back together.”

Plaintiff’s 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’s store. The children would go to the defendant’s store after the show, without finding their mother, and after waiting an hour or more, “she would come up in the ear with Mr. ■ Dowdy; nobody else was with them.” The defendant would then take plaintiff’s .wife and children within a short distance of their home, put them out and let them walk the rest of the way. Plaintiff’s wife was often seen with the defendant in his office in Sanford. The plaintiff remonstrated with the defendant, and told him he would “give up the farm and leave. ... I can’t 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.”

After leaving the-defendant’s 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 “catch his wife. . . . Catch Mr. Dowdy and his wife,” stating that the defendant had been “interfering with his family for the past six months.” It is in evidence that plaintiff is a man'of good character.

The defendant took the stand and also called the plaintiff’s wife as a witness in his behalf. They denied the implications of plaintiff’s 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’s 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’s testimony in this respect is wholly unreasonable. Plaintiff’s 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’s store, or rode alone with him in his car, she went on business connected with the farm.

Evidence was elicited and offered to the effect that plaintiff’s difficulty with his wife grew out of a quarrel between them in August, 1941, which *745resulted in physical injury to the wife, causing her to remain in bed— plaintiff says three days, she says a week.

There is evidence of the good character of plaintiff’s wife, and also of the defendant.

Motion for judgment of nonsuit renewed at the close of all the evidence. Overruled; exception.

The jury returned the following verdict:

“1. Did the defendant, E. P. Dowdy, wrongfully alienate the affections of the plaintiff’s wife, as alleged in the complaint? Answer: Yes.

“2. Did the defendant, E. P. Dowdy, have immoral relations with the plaintiff’s wife, as alleged in the complaint? Answer: Yes..

“3. Were the wrongful acts of defendant malicious? Answer: Yes.

“4. What amount of actual damages, if any, is the plaintiff entitled to recover of the defendant, E. P. Dowdy? Answer: $5,000.00.

“5. What amount of punitive damages, if any, is the plaintiff entitled to recover from the defendant, E. P. Dowdy? Answer : $2,500.00.”

With 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.

Defendant appeals, assigning errors.

*M.*(?. *Boyette and H. F. Seawall, Jr., for plaintiff, appellee.*

*X. R. Hoyle and S. R. Hoyle for defendant, appellant.*

Stacy, C. J.

This 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.

Defendant insists that plaintff’s own evidence shows his wife’s estrangement derives from their quarrel in August, 1941; that plaintiff told the officers in January, 1942, “Dowdy had been giving him trouble with his wife” for the past six months — just the length of time following the quarrel — 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.

We 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 *746defendant’s 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.

Tbis 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.

On first cause of action, New trial.

On second cause of action, Reversed.