dissent">Judge WEBB

dissenting.

I dissent from the majority. I agree with the majority’s statement of the law, but I disagree as to its application in this case. As I read the evidence, all of it for both plaintiff and defendant shows that on 20 June 1976, the defendant left the marital home intending to return. Several days later, he called his wife and told her to get an attorney for he would not return. As I understand the law, this is a good definition of abandonment. The defendant’s evidence in this regard is his own testimony as follows: “On this Sunday that I left I took enough clothes to go off and play golf in. ...Iam sure that I planned to come back to the home when I left and probably to live there. I don’t recall what my thoughts were at that time. On that Wednesday night I called my wife and told her to get a lawyer. . . . Possibly I made up my mind that week that I was going to leave home for good. ... It is correct that I made up my mind on the week of July (sic) 20th that I was going *410to leave home for good.” The defendant said he “thought it was an agreement that we would split up.” How he thought there was such an agreement is hard for me to see in the light of his own uncontradicted testimony that he left home intending to return. I do not believe his conclusion that there was an agreement should be given any weight in the face of his own statements which show conclusively there was not an agreement.

It is true that the burden of proof is on the plaintiff to show that the defendant left without justification. In this case there is no evidence by the plaintiff or defendant of justification. The defendant testified the marriage had deteriorated and they had discussed separation and a division of property. Several times she told him to “get out and don’t come back.” I do not believe this is evidence as would likely render it impossible for the defendant to continue the marital relation with safety, health and self respect. Caddell v. Caddell, 236 N.C. 686, 73 S.E. 2d 923 (1952). There being no evidence of justification, I do not believe the burden of proof is on the plaintiff to such an extent that she must negate all possibilities of justification. I believe the burden of coming forward with the evidence was on the defendant to show some justification and the burden would be on the plaintiff to negate this evidence.

For the reasons stated in this opinion, I believe all the evidence in this case is that the defendant left home intending to return. He then decided not to return. There was not enough evidence of justification for his not returning to be submitted to the jury. This is abandonment and the district court committed error by not granting the plaintiff’s motion for a directed verdict and for judgment notwithstanding the verdict.

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