correctness rule in North Carolina

1933In Cooke v. Cooke, 164 N. C., 272 , the Court in construing the statute as it then stood remarked that there was nothing in the law to indicate that the right conferred was dependent on the blame which might attach to the one party or the other; but in the later case of Sanderson v. Sanderson, 178 N. C., 339 , the decision in the earlier one was explained in these words: “An examination of the opinions in the Cooke case demonstrates that it does not question the correctness of the principle that one who is in the wrong cannot procure a divorce under a statute which gives the right of action to

1919The plaintiff insists, however, that the question has been decided differently in Cooke v. Cooke, 164 N. C., 272 , and, as this is the last utterance of the Court, it destroys the effect of prior decisions, but an examination of the opinions in the Cooke case demonstrates that it does not question the correctness of the principle that one who is in the wrong cannot procure a divorce under a statute which gives the right of action to the injured party alone, and that the decision rests upon the ground that the cause for divorce on account of separation for ten years, as it then stood, was provi

1989Based on these assertions, the Albert Court stated that the defendant had "failed to carry her burden on this factor." However, the record also disclosed the prosecutor subsequently admitted the correctness of the defense counsel's assertions: [T]he record discloses that the trial court inquired of the prosecutor, `Mr. Solicitor do any of [the three defendants] have a prior criminal record?' The prosecutor answered `Only Mr. Dearen ...' Inasmuch as the State appears to have stipulated that neither the defendant Mills nor the defendant Albert had a criminal record, we hold that the trial court

1989Based on these assertions, the Albert Court stated that the defendant had "failed to carry her burden on this factor." However, the record also disclosed the prosecutor subsequently admitted the correctness of the defense counsel's assertions: [T]he record discloses that the trial court inquired of the prosecutor, `Mr. Solicitor do any of [the three defendants] have a prior criminal record?' The prosecutor answered `Only Mr. Dearen ...' Inasmuch as the State appears to have stipulated that neither the defendant Mills nor the defendant Albert had a criminal record, we hold that the trial court

1989The correctness of this presumption has been upheld by our Supreme Court in the recent case of McLean v. McLean, 323 N.C. 543 , 374 S.E. 2d 376 (1988).

1989The correctness of this presumption has been upheld by our Supreme Court in the recent case of McLean v. McLean, 323 N.C. 543 , 374 S.E. 2d 376 (1988).

1980(Citations omitted.) The correctness of this rule is reinforced by the holding of the Supreme Court of the United States in Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977).

1980(Citations omitted.) The correctness of this rule is reinforced by the holding of the Supreme Court of the United States in Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977).

1933In Cooke v. Cooke, 164 N. C., 272 , the Court in construing the statute as it then stood remarked that there was nothing in the law to indicate that the right conferred was dependent on the blame which might attach to the one party or the other; but in the later case of Sanderson v. Sanderson, 178 N. C., 339 , the decision in the earlier one was explained in these words: “An examination of the opinions in the Cooke case demonstrates that it does not question the correctness of the principle that one who is in the wrong cannot procure a divorce under a statute which gives the right of action to

1933To the same effect is the decision in Lee v. Lee, 182 N. C., 61 .

1904When we once admit the correctness of the principle upon which such recoveries have been based (and this has been done at the present term in Cogdell v. Telegraph Co., and Hood v. Telegraph Co., and at the February Term, 1902, in Meadows v. Telegraph Co., 132 N. C., 40 , and Bright v. Telegraph Co., 132 N. C., 317 , by a unanimous court), we must carry this admittedly correct principle to its legitimate and logical conclusion and to its necessary consequence, and permit a recovery by any one, without regard to the closeness of relationship, who can show the negligence and that mental anguish p

1904When we once admit the correctness of the principle upon which such recoveries have been based (and this has been done at the present term in Cogdell v. Telegraph Co., and Hood v. Telegraph Co., and at the February Term, 1902, in Meadows v. Telegraph Co., 132 N. C., 40 , and Bright v. Telegraph Co., 132 N. C., 317 , by a unanimous court), we must carry this admittedly correct principle to its legitimate and logical conclusion and to its necessary consequence, and permit a recovery by any one, without regard to the closeness of relationship, who can show the negligence and that mental anguish p

1896The principle as first formulated in Davies v. Mann, 10 M. & W., (Exc.) 545, and first laid down in this State in Gunter v. Wicker, 85 N. C., 310 , was stated in the latter case as follows: “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care on the part of the defendant, an action will lie for damages.” Ever since that time this Court has applied the principle only, in cases where, after the negligent act of plaintiff was a fact accomplished, the defendant had an opportunity or chance to exe

1887Without expressing any opinion as to the correctness of the rule laid down in the case of Clements v. The State, 77 N. C., 142 , as applicable to the facts in that case, we think it has no application to this.

1882In this state, however, the rule, which allows the obligations of one coobligor to be affected by such a payment made by another, has been directly applied in McKeethan v. Atkinson , 46 N.C. 421 ; Wilfong v . *Page 301 Cline, Ib. , 499; Lowe v. Sowell , 48 N.C. 67 , and has been clearly recognized in a number of other decisions.

1882In this state, however, the rule, which allows the obligations of one coobligor to be affected by such a payment made by another, has been directly applied in McKeethan v. Atkinson , 46 N.C. 421 ; Wilfong v . *Page 301 Cline, Ib. , 499; Lowe v. Sowell , 48 N.C. 67 , and has been clearly recognized in a number of other decisions.

1881In the case of Commissioners v. Keller, 6 Kan., 510 , it is held that the allowance of a claim, by the county board is not final and conclusive.