The opinion
DnviN, C. J.,
dissenting: Twice the court and jury have decided upon the evidence offered that the plaintiff was entitled to a divorce from the *128 defendant. After the first divorce decree was signed in 1947 the plaintiff remarried and lived as husband and wife with his second wife until February, 1951, when the first divorce decree was set aside by this Court. McLean v. McLean, 233 N.C. 139 . On the second hearing in Alamance Superior Court, May, 1952, the defendant was present with counsel, and the issues were fought out before a jury. Both plaintiff and the defendant testified, and all the evidence pertinent to the issues, and particularly to the issue whether the separation was caused by the fault of the plaintiff, was submitted to the jury. Again the issues were answered in favor of the plaintiff and the Judge signed the decree of divorce. The plaintiff’s evidence was sufficient to carry the case to the jury. There was no objection or exception to any of the evidence offered by the plaintiff.
The majority opinion, however, holds that the trial judge erred in his charge to the jury in stating as one of the plaintiff’s contentions that there was an understanding between himself and the defendant at the time they were married in 1933 that they would get married and when the child was horn they would separate and get a divorce. This evidence had been admitted without objection. There was no suggestion to the trial judge that the defendant considered or would argue that this evidence was incompetent or improper. It was offered to negative the charge embraced in the 4th issue that the separation was caused by the fault of the plaintiff. The defendant testified in contradiction about the same transaction. This was one of many matters related by plaintiff in his testimony tending to show that there had been a separation not later than 1944 and a living apart for the statutory period. In this case without objection opportunity was given both parties to testify about their relations so that the jury might have the complete picture. The plaintiff’s suit was not based upon any antenuptial agreement nor was any contract right based thereon asserted. The separation alleged as the basis of the suit began long afterward. The principle enunciated in Archbell v. Archbell, 158 N.C. 408 , has no application here. It was only after the defendant had lost her case that she raised the point of any impropriety in the plaintiff’s evidence to which she had not theretofore objected.
Counsel for defendant frankly stated in his argument before this Court that he was basing his appeal largely on the question of nonsuit, and that he could hardly expect a jury to break up a subsisting marriage in the attempt to restore one that had long since gone on the rocks. The plaintiff and defendant have not lived together as husband and wife for many years, and there is no hope they ever will. The plaintiff is a Master Sergeant in the United States Army, and has been a resident of Greensboro since 1946. While his conduct in the manner in which he secured the first divorce was improper, after that divorce decree was signed, the second wife married him in good faith, and they lived together for more *129 than three years and until the first divorce decree was set aside. They are now separated by the law hut doubtless hoping to renew their disrupted marriage relation.
I think the verdict and judgment below should not he disturbed.
ERVIN, J., concurs in dissent.