Howell v. Howell

210 S.E.2d 216 (1974)

24 N.C. App. 127

Virginia Doris Collier HOWELL v. John James HOWELL. John J. HOWELL v. Virginia Doris Collier HOWELL.

No. 746DC655.

Court of Appeals of North Carolina.

December 4, 1974.

*217 Johnson, Johnson & Johnson, by Bruce C. Johnson, Conway, for appellant.

No counsel contra.

BRITT, Judge.

Appellant's main contention is that the trial judge should have submitted the issue of constructive abandonment and should have instructed the jury on this issue. We agree. The primary ground of appellant's original action and the counterclaim to her husband's action for an absolute divorce is constructive abandonment. Evidence presented at the trial tended to show: Prior to the separation, Mr. Howell on several occasions had beaten Mrs. Howell, and threatened to kill her; that on the night of 13 December 1972, he severely beat her with his fist and she left the next morning out of fear and remained separated from him; that as a result of said beating, her face and nose were swollen; that they have lived separate and apart since 14 December 1972.

It is well settled that a trial judge has the duty, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. G.S. § 1A-1, Rule 49(b) [former G.S. § 1-200]; Wheeler v. Wheeler, 239 N.C. 646, 80 S.E.2d 755 (1954); Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876 (1955).

In Panhorst v. Panhorst, 277 N.C. 664, 670, 178 S.E.2d 387, 392 (1971), the court said:

"It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence." (Citation). Rule 51(a) of the Rules of Civil Procedure, formerly G.S. § 1-180, "requires the judge `to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.' (Citation)." (Citations omitted).

We hold that under the pleadings and evidence in this case, the trial court erred in not submitting an issue with respect to constructive abandonment and in failing to instruct the jury on that issue.

While the error that we have determined relates primarily to only one issue, we conclude that all of the issues are so interrelated that the ends of justice require a new trial of the whole case. It is so ordered. 1 Strong, N.C. Index 2d, Appeal and Error § 62, at 239 (1967); Paris v. Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131 (1967); Kinney v. Goley, 6 N.C.App. 182, 169 S.E.2d 525 (1969).

New trial.

HEDRICK and MARTIN, JJ., concur.