Pasquotank County NcArchives Court.....Jesse R. Brown, Lizzie Brown V. 1899
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Connie Ardrey n/a December 5, 2011, 7:11 pm

Source: N C Reports
Written: 1899

Lizzie Brown v. Jesse R. Brown

(Decided February 21, 1899)

Husband and wife - Parent and Child - Malice, in a legal sense - Judge's Charge

1. Whilst the law carefully guards the marriage relation and protects it from 
unwarranted outside interference, at the same time, the law can not disregard 
the tender relation of parent and child, with its natural affection and 
duties, still remaining after the marriage of the child.

2. In the case of unhappy matrimonial disagreements, the child naturally turns 
to the parent for comfort and advice - and the law recognizes the right of the 
parent, in such cases, to advise the child. When such advice is given in good 
faith, which will be presumed until the contrary appears, and results in a 
separation of the married parties - such result, of itself, gives no right of 
action to the injured party against the parent.

3. To sustain such action, the complaint must in substance aver that the 
separation was maliciously caused by the defendant, and the evidence must 
support the averment. The defendant, upon request, is entitled to the charge. 
If the jury find that the defendant caused the separation, yet you shall not 
render a verdict for the plaintiff unless you find the defendant maliciously 
caused the separation.

4. The malice, necessary to be alleged and proved, is not alone such malice as 
must proceed from a malignant and revengeful disposition, but that it would be 
sufficient to prove to the satisfaction of the jury that the parent's action 
was taken without proper investigation of the facts, or where the advice was 
given from recklessness or dishonesty of purpose - the law presuming malice 
from such conduct in actions of this nature.

Civil Action for damages, tried before Norwood, J., and a jury, at Spring 
Term, 1898, of the Superior Court of Pasquotank County. The plaintiff was the 
daughter-in-law of defendant. The complaint substantially charged that the 
defendant maliciously alienated the affections of her husband from her and 
caused him to abandon her. The answer denied the charge. The evidence was 
voluminous and conflicting.

Among other things, his Honor instructed the jury that: "If the jury find that 
the defendant willfully caused the plaintiff's husband to forsake and abandon 
her, the plaintiff is entitled to recover." And as to the measure of damages, 
that if they should find that the defendant caused the plaintiff's husband to 
willfully forsake and abandon her, and that it was not done with malice, they 
should give only such actual damages as the plaintiff had sustained.

Defendant excepted.

There was a verdict for plaintiff for $800. Judgment accordingly, and 
defendant appealed.

Messrs. G. W. Ward and Pruden & Pruden, for appellant.
Mr. E. F. Aydlett, for appellee.

NC Supreme Court Justice Montgomery, J. - The only question (raised by 
demurrer to the complaint) for decision when this case was here before, was 
whether a married woman, abandoned by her husband, could maintain without the 
joinder of her husband an action in tort. The Court held that such an action 
could be maintained. The present appeal is before us on exceptions to the 
charge of his Honor.

The complaint contains three alleged causes of action; the first, that the 
defendant unlawfully, wrongfully and wickedly intending to injure the 
plaintiff and to deprive her of the society and aid of her husband, destroyed 
the affection of her husband toward her and caused him to leave and abandon 
her; second, that he commenced against her a false and malicious prosecution 
for an alleged assault and battery upon her husband; and third, for the false 
arrest and imprisonment of the plaintiff, based upon such charge.

The defendant is the father of the plaintiff's husband, and in his answer 
there is a denial of the material allegations of the complaint.

The issues arising on the pleadings as to the last two causes of action were 
found in favor of the defendant, and therefore do not concern the appeal. The 
first issue was in these words: "Did defendants alienate the affection of the 
plaintiff's husband and cause him to abandon her, as alleged in the 
complaint?" The second issue was: "If so, what damage has plaintiff 
sustained?" His Honor, in substance, instructed the jury that if they should 
find that the defendant willfully caused the defendant's husband to forsake 
and abandon her, the plaintiff would be entitled to recover, and the jury 
should answer the first issue, "Yes." And as to the measure of damages, the 
Court charged the jury that if they should find that the defendant caused the 
plaintiff's husband to willfully forsake and abandon her and that it was not 
done with malice, they should give only such actual damages as the plaintiff 
had sustained.

There was error in those instructions. The complaint in substance, alleged, 
that the conduct of the defendant was malicious. The charge of his Honor was 
that, "if the jury should find that the defendant willfully caused the husband 
to abandon the wife, then the first issue (which raised the question of malice 
in the defendant) should be answered in the affirmative. The word 'willfully' 
does not mean maliciously. 'Willfully' implies that an act done in that spirit 
is done knowingly and obstinately and persistently, but not necessarily 
maliciously."

It can not be that the law disregards the tender relations of kinship and 
natural affection between parent and child and the duties which such relations 
impose, even though the child is married. In case of unhappiness and 
disagreements between the married couple, it is almost impossible to conceive 
of the indifference on the part of the parent to such conditions, and certain 
it is that the child naturally turns to the parent for comfort and advice 
under such circumstances. There are laws of natural affection and of natural 
duty, and municipal law will not obstruct their free operation as long as they 
are not abused. The presumption in fact and in law in all such cases must be, 
and is, that the parent will act only for the best interest of the child and 
for the honor of the family. 

...We are of the opinion, after having given the matter the serious 
consideration which it deserves, that, before a parent can be held liable in 
damages for advising his married child to abandon his wife, or her husband, 
the conduct of the parent should be alleged and proved to be malicious; that 
the willful advice and action of the parent in such a case may not be 
necessarily malicious, for the parent may be determined and persistent and 
obstinate in his purpose to cause the separation, and yet be entirely free 
from malice - in fact, have in view the highest good of his child. Our 
opinion, however, is that the malice necessary to be alleged and proved is not 
alone such malice as must proceed from a malignant and revengeful disposition, 
but that it would be sufficient to prove to the satisfaction of the jury that 
the parent's action was taken without proper investigation of the facts, or 
where the advice was given from recklessness or dishonesty of purpose - the 
law presuming malice from such conduct in actions of this mature. (see court 
case for judge's full findings)

Error

Additional Comments:
In the NC Supreme Court February Term 1899

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