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Alienation of Affection and Criminal Conversation Part 3

N.C.P.I.—Civil 800.23
General Civil Volume
ALIENATION OF AFFECTION—STATUTE OF LIMITATIONS.


NOTE WELL: Actions arising from acts occurring prior to October 1, 2009, are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006), upon which this instruction is based. For actions arising from acts occurring on or after October 1, 2009, use N.C.P.I.—Civil 800.23A (“Alienation of Affection — Statute of Limitations”).

The (state number) issue reads:

"Did the plaintiff file this action within three years of the date the alienation between the plaintiff and his spouse became complete?"1

If you have answered the (state number) issue "Yes" in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2

The law provides that a lawsuit claiming alienation of affection must be filed within three years of the date the alienation between the plaintiff and his spouse became complete.3 The plaintiff filed the present lawsuit on (state date of filing of alienation of affection action).

On this issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must prove, by the greater weight of the evidence, that the alienation of the genuine marital relationship between the plaintiff and his spouse became complete less than three years before (state date of filing of alienation of affection action).

Alienation is complete at that point in time when the genuine marital relationship between spouses becomes seriously diminished or destroyed.5 The law recognizes that this diminishment or destruction may not happen all at once. You must determine when the genuine marital relationship between the plaintiff and his spouse became seriously diminished or destroyed based upon all of the evidence.

[If you find, by the greater weight of the evidence, that there came a point in time when there was no longer a chance of reconciliation between the plaintiff and his spouse, then the diminishment or destruction of the genuine marital relationship between the plaintiff and his spouse would have become complete at that point in time.6]

You may consider whether the plaintiff and his spouse resided together in your determination of this issue.7 It is not required that spouses be living together at the time the diminishment or destruction of a genuine marital relationship becomes complete.8 The diminishment or destruction may become complete even though spouses continue to live together;9 likewise, although the circumstance that spouses are not living together may be strong evidence of alienation,10 the diminishment or destruction may not be complete even though spouses are no longer living together.11

Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence, that the plaintiff filed this action within three years of the date the alienation between the plaintiff and his spouse became complete, then it would be your duty to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty to answer this issue "No" in favor of the defendant.


1 The three year statute of limitations set out in N.C. GEN. STAT. § 1-52(5)(2005) applies to a claim of alienation of affection. McCutchen v. McCutchen, 360 N.C. 280, 283, 624 S.E.2d 620, 623 (2006). "The question of when alienation occurs is ordinarily one for the factfinder." Id. at 284, 624 S.E.2d at 624 (citation omitted).

2 A "statute of limitations" is "the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable." South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). "Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 "It is only after the diminution or, when applicable, the destruction of love and affection is complete that plaintiff's cause of action accrues and the statute of limitations begins to run." McCutchen, 360 N.C. at 284, 624 S.E.2d at 624 (citation omitted).

4 "While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred." Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997) (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on plaintiff to prove claims were timely filed when the defendant asserts the statute of limitations as an affirmative defense).

5 The "wrong" in an alienation claim "is a continuing one," and "[i]t is only after the diminution or, when applicable, the destruction of love and affection is complete that [the] cause of action accrues and the statute of limitations begins to run." McCutchen, 360 N.C. at 284, 624 S.E.2d at 623–24 (citations and internal quotations omitted).

6 See id. at 284-85, 624 S.E.2d at 623–24. In McCutchen, although the parties had separated on September 9, 1998, the Court observed that the jury "could determine alienation did not occur until as late as February 2001" because the wife "apparently had reason to believe the couple would reconcile until [the husband] made a final decision in February 2001 to end their marriage." Id. at 286, 624 S.E.2d at 625. The bracketed language may therefore be helpful in factual situations resembling that in McCutchen. The McCutchen Court also reasoned that setting accrual of an alienation of affection claim as of the date of separation "would force spouses to take prompt legal action, often to the detriment of reconciliation efforts. Such a rule would prejudice those who reasonably believe love and affection remains in their marriage and postpone legal action until the chance of reconciliation no longer exists." Id. at 284–85, 624 S.E.2d at 624.

7 See Litchfield v. Cox, 266 N.C. 622, 623, 146 S.E.2d 641, 642 (1966) (stating that although spouses continued to live together affected the "credibility" of the plaintiff's evidence, the issue of alienation remained "a question for the jury"); Jones v. Skelley, ___ N.C. App. ___, ___, 673 S.E.2d 385, 391 (2009) ("[T]he fact that the plaintiff and her or his spouse continue to live in the same house after the spouse's affections have allegedly been alienated affects only the credibility of the plaintiff's testimony, and is not a defense to a claim of alienation of affections[.]" (citation and internal quotations omitted)).

8 McCutchen specifically overruled the Court of Appeals holding in Pharr v. Beck, 147 N.C. App. 268, 273, 554 S.E.2d 851, 855 (2001), "to the extent it requires an alienation of affections claim to be based on pre-separation conduct alone." McCutchen, 360 N.C. at 285, 624 S.E.2d at 625.

9 See id. at 284, 624 S.E.2d at 624 ("[T]he fact that spouses continue living together after the alleged alienation does not preclude the possibility that alienation of affections has already occurred." (citation omitted)).

10 See id. ("Although separation may be strong evidence of alienation, and may affect the damages available to the plaintiff, we have never held that plaintiff and spouse must live together at the time the cause of action arises.").

11 See id. at 286, 624 S.E.2d at 625 (finding that there existed "a genuine issue of material fact as to whether there was love and affection following [plaintiff's] separation from [her spouse]"). Cf. SUZANNE REYNOLDS, 1 LEE'S NORTH CAROLINA FAMILY LAW § 5.46(A) 395 (5th Ed. 2009) (noting that the claim endures even if the alleged misconduct occurs while the spouses are living apart "since the spouses could have reconciled").

N.C.P.I.—Civil 800.23A
General Civil Volume
June 2010
ALIENATION OF AFFECTION—STATUTE OF LIMITATIONS.


NOTE WELL: N.C. GEN. STAT. § 52-13, effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, provides as follows:
(a) No act of the defendant shall give rise to a cause of action for alienation of affection . . . that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent.
(b) An action for alienation of affection . . . shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action. This instruction incorporates the foregoing statutory amendment and should be used in all actions arising from acts occurring on or after October 1, 2009.
Actions arising from acts occurring prior to October 1, 2009, are governed solely by the North Carolina Supreme Court decision in McCutchen v. McCutchen, 360 N.C. 280, 624 S.E.2d 620 (2006). For actions arising from acts occurring before October 1, 2009, use N.C.P.I.—Civil 800.23 ("Alienation of Affection—Statute of Limitations").

The (state number) issue reads:

"Did the plaintiff file this action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim?"1

If you have answered the (state number) issue "Yes" in favor of the plaintiff, the plaintiff's claim may nonetheless be legally barred by what is called the statute of limitations.2

The law provides that a lawsuit claiming alienation of affection must be filed within three years of the date of the last act of the defendant which gave rise to the plaintiff's claim. [The law further provides that if the plaintiff and the plaintiff's spouse have physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent, then no act of the defendant which occurs following such separation may give rise to the plaintiff's alienation of affection claim.]3 The plaintiff filed the present lawsuit on (state date of filing of alienation of affection action).

By answering issue (state number) "Yes" in favor of the plaintiff, you found that the malicious and wrongful conduct of the defendant consisted of [an act] [acts] which occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.

On this (state number) issue, the burden of proof is on the plaintiff.4 This means that the plaintiff must now prove, by the greater weight of the evidence, that the last act of the defendant upon which you based your finding in issue (state number) must have occurred less than three years before the date of the filing of this lawsuit by the plaintiff.

Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the plaintiff filed this action within three years of the date of the last act of the defendant giving rise to the plaintiff's claim, then it would be your duty to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty to answer this issue "No" in favor of the defendant.


1 See N.C. GEN. STAT. § 52-13(b) (2009).

2 A "statute of limitations" is "the action of the State in determining that, after the lapse of a specified time, a claim shall not be legally enforceable." South Dakota v. North Carolina, 192 U.S. 286, 346 (1904). "Generally, whether a cause of action is barred by the statute of limitations is a mixed question of law and fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 69 N.C. App. 505, 508, 317 S.E.2d 41, 43 (1984).

3 N.C. GEN. STAT. § 52-13(a).

4 "While the plea of the statute of limitations is a positive defense and must be pleaded, . . . when it has been properly pleaded, the burden of proof is then upon the party against whom the statute is pleaded to show that his claim is not barred, and is not upon the party pleading the statute to show that it is barred." Hudson v. Game World, Inc., 126 N.C. App. 139, 145, 484 S.E.2d 435, 439 (1997) (quoting Solon Lodge v. Ionic Lodge, 247 N.C. 310, 316, 101 S.E.2d 8, 13 (1957)). See also White v. Consolidated Planning, Inc., 166 N.C. App. 283, 305, 603 S.E.2d 147, 162 (2004) (stating that the burden rests on the plaintiff to prove claims were timely filed when the defendant asserts the statute of limitations as an affirmative defense).

N.C.P.I.—Civil 800.25
General Civil Volume
CRIMINAL CONVERSATION.


NOTE WELL: N.C. GEN. STAT. § 52-13 (a), effective October 1, 2009, and applicable to actions arising from acts occurring on or after that date, provides as follows:
No act of the defendant shall give rise to a cause for . . . criminal conversation that occurs after the plaintiff and the plaintiff's spouse physically separate with the intent of either the plaintiff or plaintiff's spouse that the physical separation remain permanent. This statutory amendment is incorporated into the bracketed second element in this instruction.
Actions arising from acts occurring prior to October 1, 2009, are governed solely by the decisions in Sebastian v. Kluttz, 6 N.C. App. 201, 170 S.E.2d 104 (1969), Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996), and Bryant v. Carrier, 214 N.C. 191, 198 S.E. 619 (1938) ("The mere fact of separation will not bar an action for criminal conversation occurring during separation."). In actions arising from acts occurring prior to October 1, 2009, the bracketed second element in this instruction would not be used.

The (state number) issue reads:

"Did the defendant commit criminal conversation with the plaintiff's spouse?"

Criminal conversation is sexual intercourse with the spouse of another person during the marriage.1

On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, [the following thing] [two things]:

[First,] that during the marriage of the plaintiff and his spouse, the defendant had sexual intercourse with the spouse of the plaintiff2 [in the State of North Carolina.3]

[Second, that the sexual intercourse between the defendant and the spouse of the plaintiff occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent.4]

[Evidence of conduct of the defendant occurring after the plaintiff and his spouse physically separated with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent may not be considered by you in your determination of any fact in this trial, but may be considered only for the purpose of corroborating or supporting any evidence of malicious and wrongful conduct on the part of the defendant occurring before the plaintiff and his spouse physically separated.5]

[It is not required that the defendant be aware of the marriage between the plaintiff and his spouse.6]

[A single act of sexual intercourse between the defendant and the plaintiff's spouse will entitle the plaintiff to recover.7]

[You must not consider whether the plaintiff's spouse consented to or enticed the sexual intercourse].8

[You must not consider whether the marital relationship between the plaintiff and his spouse was accompanied by love and affection].9

[You must not consider whether the plaintiff and his spouse had separated and ceased cohabitation before the sexual intercourse occurred].10

[You must not consider whether the plaintiff was ever unfaithful to his spouse].11

Finally, as to this issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the defendant had sexual intercourse [in the State of North Carolina] with the spouse of the plaintiff while the plaintiff and his spouse were married, [and that the sexual intercourse between the defendant and the spouse of the plaintiff occurred prior to the physical separation of the plaintiff and his spouse with the intent on the part of either the plaintiff or his spouse that the physical separation remain permanent,] then it would be your duty to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty to answer this issue "No" in favor of the defendant.

1 A claim of criminal conversation must be based upon "evidence demonstrating: ‘(1) marriage between the spouses and (2) sexual intercourse between defendant and plaintiff's spouse during the marriage.'" Coachman v. Gould, 122 N.C. App. 443, 446, 470 S.E.2d 560, 563 (1996) (citation omitted).

2 Elements of a criminal conversation claim are: (1) "marriage between the spouses" and (2) "sexual

intercourse between defendant and plaintiff's spouse during the [marriage]." Sebastian v. Kluttz, 6 N.C. App. 201, 209, 170 S.E.2d 104, 109 (1969). See also Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996) ("The elements of criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture.").

3 See Jones v. Skelley, ___ N.C. App. ___, ___, 673 S.E.2d 385, 392-93 (2009) ("[A] plaintiff must also

show ‘that the tortious injuries[,] . . . [the] criminal conversation, occurred in North Carolina before North Carolina substantive law can be applied.' Consequently, a plaintiff must show that a defendant engaged in sexual intercourse with her spouse in North Carolina."(citation omitted)).

Accordingly, the bracketed instruction should be used if there is a factual dispute about whether the criminal conversation occurred in North Carolina.

4 N.C. GEN. STAT. § 52-13(a) (2009).

5 See Pharr v. Beck, 147 N.C. App. 268, 273, 554 S.E.2d 851, 855 (2001) (finding in an alienation of affection action that "post-separation conduct is admissible only to the extent [that] it corroborates pre-separation activities resulting in the alienation of affection"), overruled on other grounds, McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006) ("We . . . overrule Pharr to the extent it requires an alienation of affections claim to be based on pre-separation conduct alone."). The holding in Pharr is effectively reinstated by N.C. GEN. STAT. § 52-13.

6 See SUZANNE REYNOLDS, 1 LEE'S NORTH CAROLINA FAMILY LAW § 5.46(B), n.749 (5th ed. 2009) ("One who has sexual relations with another not one's spouse takes the risk that the other may be somebody else's spouse."(citing 2 F. HARPER ET AL., THE LAW OF TORTS § 8.3, 511 (2d ed. 1986))).

7 See Skelley, ___ N.C. App. at ___, 673 S.E.2d at 393.

8 See Scott v. Kiker, 59 N.C. App. 458, 464, 297 S.E.2d 142, 147 (1982). However, the consent of the plaintiff would be a viable defense. See Cannon v. Miller, 71 N.C. App. 460, 465- 66, 322 S.E.2d 780, 785-86 (1984), vacated on other grounds, 313 N.C. 324, 327 S.E.2d 888 (1985) (stating that the plaintiff's consent is the only substantive defense to a claim for criminal conversation); Barker v. Dowdy, 223 N.C. 151, 152, 25 S.E.2d 404, 405 (1943) (stating that "connivance" of a spouse in the adultery of the other spouse "would constitute a defense to an action for criminal conversation"); cf. REYNOLDS, supra note 6, § 5.46(B) ("[T]o establish consent or connivance, . . . the defendant should have to establish that, before the sexual intercourse [occurred], the plaintiff either encouraged the conduct or at least approved it.").

9 See Sebastian, 6 N.C. App. at 209, 170 S.E.2d at 109.

10 See id. at 210, 170 S.E.2d at 109; Brown, 124 N.C. App. at 380, 477 S.E.2d at 237; Bryant v. Carrier, 214 N.C. 191, 195, 198 S.E. 619, 621 (1938) ("The mere fact of separation will not bar an action for criminal conversation occurring during separation." (citation and internal quotations omitted)). However, in light of the statutory amendment cited in the NOTE WELL, this alternative would be applicable only to actions arising from acts occurring before October 1, 2009.

11 Scott, 59 N.C. App. at 463, 297 S.E.2d at 146.

N.C.P.I.—Civil 800.26
General Civil Volume
ALIENATION OF AFFECTION/CRIMINAL CONVERSATION—DAMAGES.1


The (state number) issue reads:

"What amount is the plaintiff entitled to recover from the defendant?"

If you have answered the (state number) issue "Yes" in favor of the plaintiff, the plaintiff is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of the technical harm caused by the conduct of the defendant.

The plaintiff may also be entitled to recover actual damages.2 On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the amount of actual damages proximately3 caused by the conduct of the defendant.

In determining the amount of money, if any, the plaintiff may recover, you may consider:4

[any mental anguish, shame, humiliation or disgrace suffered by the plaintiff5]

[any loss of sexual relations between the plaintiff and his spouse]

[any injury to reputation]

[any loss of support6 [or other economic loss7]

[any other adverse effect on the quality of the marital relationship].

[the loss by the plaintiff of the consortium of his spouse. Consortium means the marital fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other.]

Any amount you allow as future damages must be reduced to its present value, because a smaller sum received now is equal to a larger sum received in the future.8

(If the mortality tables have been introduced into evidence, it will be necessary to adapt and use an appropriate instruction from N.C.P.I.—Civil 810.14 ("Personal Injury Damages— Permanent Injury")).9

(If a per diem argument is made, adapt and use N.C.P.I.—Civil 810.56 ("Wrongful Death Damages—Final Mandate (Per Diem Argument by Counsel)") in place of the following).

I instruct you that if you reach this issue, your decision must be based upon the evidence and the rules of law I have given you with respect to the measure of damages. You are not required to accept the measure of damages suggested by the parties or their attorneys.

Your award must be fair and just. You are to remember that you are not seeking to punish either party, and you are not awarding or withholding anything on the basis of sympathy or pity.

Finally, as to this (state number) issue on which the plaintiff has the burden of proof, if you find, by the greater weight of the evidence, the amount of actual damages caused by the conduct of the defendant, then it would be your duty to write that amount in the blank space provided.

If, on the other hand, you fail to so find, then it would be your duty to write a nominal sum such as "One Dollar" in the blank space provided.


1 NOTE WELL: Criminal conversation claims are frequently joined in the same action with claims for alienation of affection. Professor Suzanne Reynolds states that "[w]hen plaintiffs allege and establish both torts in this state, . . . the trial court should combine them in determining damages. Since the elements of damages are so closely related, they do not support separate awards for each tort." SUZANNE REYNOLDS,1 LEE'S NORTH CAROLINA FAMILY LAW, § 5.48(A) (5th ed. 2009) (citing Sebastian v. Kluttz, 6 N.C. App. 201, 220, 170 S.E.2d 104, 116 (1969) ("[T]he two causes of action and the elements of damages . . . are so connected and intertwined, only one issue of compensatory damages and one issue of punitive damages should have been submitted to the jury."). Compare Kluttz, 6 N.C. App. at 219-20, 170 S.E.2d at 115-16: In a cause of action for alienation of affections[,] . . . the measure of damages is the present value in money of the support, consortium, and other legally protected marital interests lost by [plaintiff] through the defendant's wrong. . . . [Plaintiff] may also recover for the wrong and injury to [plaintiff's] health, feelings, or reputation.. . . . In a cause of action for criminal conversation the measure of damages is incapable of precise measurement; however, it has been [properly] held . . . that the jury in awarding damages may consider the loss of consortium, mental anguish, humiliation, injury to health, and loss of support by the [plaintiff].

2 See Carson v. Brodin, 160 N.C. App. 366, 371, 585 S.E.2d 491, 495 ("[A]ctions for damages for alienation of affections and criminal conversation constitute 'injury to person or property' as denoted by N.C. Gen. Stat. § 1-75.4(3).")

3 The jury should consider such elements of damages that it "may find [the plaintiff] has and will sustain as a proximate result of the tortious conduct of the defendant." Kluttz, 106 N.C. App. at 214, 170 S.E.2d at 112 (citations omitted); see also Powell v. Strickland, 163 N.C. 393, 403, 79 S.E. 872, 876 (1913) ("[S]ince the wrong relates to the injury which the husband sustains . . . which the tortious acts of defendant have brought or heaped upon him, and which are proximately caused by said wrong[,] . . . the plaintiff is entitled to recover compensatory damages[.]"); Oddo v. Presser, 158 N.C. App. 360, 365, 581 S.E.2d 123, 127 (2003) ("The general rule in North Carolina is that where a plaintiff is injured by the tortious conduct of a defendant, 'the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from [the] defendant's tort.'" (citation omitted)).

4 An injured spouse is entitled to recover, as compensatory damages, actual pecuniary loss, as well as "loss of consortium, humiliation, shame, mental anguish, loss of sexual relations, and the disgrace the tortious acts of defendant have brought." Scott v. Kiker, 59 N.C. App. 458, 462, 297 S.E.2d 142, 146 (1982).

5 See Nunn v. Allen, 154 N.C. App. 523, 537, 574 S.E.2d 35, 44 (2002) ("[T]estimony by plaintiff's father as to his depressed mental state and plaintiff's own testimony that he began consulting with his pastor to help deal with his emotional turmoil" constituted "substantial evidence from which a jury could have determined that he experienced mental anguish and humiliation due to the affair between his wife and defendant.").

6 See Hutelmyer v. Cox, 133 N.C. App. 364, 374, 514 S.E.2d 554, 561 (1999) (citing "plaintiff's evidence showing a loss of income, life insurance, and pension benefits resulting from the actions of defendant"); Gray v. Hoover, 94 N.C. App. 724, 730, 381 S.E.2d 472, 475 (1989).

7 See Presser, 158 N.C. App. at 365-66, 581 S.E.2d at 127-28 (finding that loss of income as an investment adviser resulting from poor work performance stemming from defendant's conduct was not "overly speculative").

8 See Kluttz, 6 N.C. App. at 219, 170 S.E.2d at 115. Punitive damages may also be awarded in appropriate cases. "Where there are sexual relations, the plaintiff will get to the jury on punitive damages whether the claim is for alienation of affections or for criminal conversation or, as is often the case, for both." REYNOLDS, supra note 1, § 5.48(C).

9 See Kluttz, 6 N.C. App. at 215, 170 S.E.2d at 112.

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