Allred v. Graves, 532

• Docket Nº: No. 532
• Citation: 261 N.C. 31, 134 S.E.2d 186
• Case Date: January 17, 1964
• Court: United States State Supreme Court of North Carolina

Page 186

134 S.E.2d 186

261 N.C. 31

Emily ALLRED v. Frank GRAVES et al.

No. 532

Supreme Court of North Carolina.

Jan. 17, 1964

H. F. Seawell, Jr., Carthage, for defendant appellants.

H. Wade Yates, Asheboro, for plaintiff appellee.

PARKER, Justice.

This appeal presents another facet of the recurring problem of the extent of the constitutional privilege against self-incrimination. Unlike most of the cases which have received the attention of the highest courts, the instant case does not involve a criminal prosecution or the inquisitorial act of a legislative committee. The claim of privilege here is interposed in an examination before trial in a civil action, after filing of the complaint and answer, on the ground that punitive damages are sought.

It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to incriminate him or subject him to fines, penalties or forfeitures. Ward v. Martin, 175 N.C. 287, 95 S.E. 621; Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; 58 Am. Jur., Witnesses, sec. 43; Annotation 118 A.L.R., p. 628; 98 C.J.S. Witnesses § 431 et seq. However, it has been held that this privilege does not apply to penalties of a purely remedial character. 58 Am.Jur., Witnesses, sec. 43. 'The facts protected from disclosure are distinctly facts involving a criminal liability or its equivalent.' 8 Wigmore, Evidence (1961), p. 331. The rule against self-incrimination has existed from an early date in the English common law, and its origin has been said to be based on no statute and no judicial decision but on a general and silent acquiescence of the courts in a popular demand. This rule, it has been said in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97, distinguished the English common law 'from all other systems of jurisprudence.' It was so well established that on the separation of the colonies from Great Britain and the establishment of the United States, it was universally recognized therein as a part of the fundamental law. Brown v. Walker, supra. In Brown v. Walker, the Court said:

'So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment.'

The constitutional guaranties against self-incrimination should be liberally construed. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Quinn v. United States, 349 U.S. 155, 75 App.D.C. 668, 99 L.Ed. 964; Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511, 53 A.L.R.2d 1008; 98 C.J.S. Witnesses § 432.

The privilege against self-incrimination may be exercised by a witness in any proceeding. It has been held that '[e]ven though the constitutional provision is worded simply that no person 'shall be compelled in any criminal case to be a witness against himself,' the privilege of refusing to answer extends to all proceedings sanctioned by law and to any investigation, ex parte or otherwise, litigious or not.' 98 C.J.S. Witnesses § 433. This is said in 98 C.J.S. Witnesses § 433 p. 246: 'The privilege also applies in civil actions and proceedings, as, for example, with reference to an answer in chancery, a proceeding for discovery or for examination before trial, to interrogations of a party in equity before trial, to the examination of a bankrupt, or an insolvent, or a judgment debtor, to the examination of a trustee in bankruptcy before a referee, to proceedings to take a deposition, * * * and to proceedings to enforce forfeitures.'

'Punitive damages are not recoverable in any case as a matter of right. If the pleading and evidence so warrant, an issue as to punitive damages should be submitted to the jury. Upon submission thereof, it is for the jury to determine (1) whether punitive damages in any amount should be awarded, and if so (2) the amount of the award. These questions are determinable by the jury in its discretion.' Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806.

In Smith v. Myers, 188 N.C. 551, 125 S.E. 178, the Court said: 'Vindictive or punitive damages are treated as an award by way of punishment to the offender and as a warning to other wrongdoers; they are not allowed as a matter of course, but only when there are some features of aggravation, as willfulness, malice, rudeness, oppression, or a reckless and wanton disregard of the plaintiff's rights.' In Overnite Transportation Co. v. International Brotherhood, 257 N.C. 18, 125 S.E.2d 277, cert. den. 371 U.S. 862, 83 S.Ct. 120, 9 L.Ed.2d 100, reh. den. 371 U.S. 899, 83 S.Ct. 182, 9 L.Ed.2d 131, the Court said: 'Punitive damages are never awarded as compensation. They are awarded above and beyond actual damages, as a punishment for the defendant's intentional wrong. They are given to the plaintiff in a proper case, not because they are due, but because of the opportunity the case affords the court to inflict punishment for conduct intentionally wrongful.'

In Tripp v. American Tobacco Co., 193 N.C. 614, 137 S.E. 871, the Court quotes with approval from Day v. Woodworth, 54 U.S. 363, 371, 14 L.Ed. 181, as follows: "It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. * * * By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.' ' In Voltz v. General Motors Acceptance Corp., 332 Pa. 141, 2 A.2d 697, the Court said punitive damages 'are, as the nomenclature indicates, penal in character.'

In Life and Casualty Insurance Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987 (992), Mr. Justice Cardozo speaking for the Court said: "Penalty' is a term of varying and uncertain meaning. There are penalties recoverable in vindication of the public justice of the state. There are other penalties designed as reparation to sufferers from wrongs.'

When the penalty lies in the payment of money, the Courts are in conflict. The following cases hold that the privilege against self-incrimination applies: Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150 (1893) (action to recover statutory penalty for illegal transportation of aliens; privilege applies); Speidel Co. v. N. Barstow Co., 232 F. 617 (D.R.I.1916) (where a statute imposes triple damages for infringement of a patent, interrogatories for discovery under Equity Rule 58 are privileged from answer); Wilson v. Union Tool Co., 275 F. 624 (S.D.Cal.1921) (treble damages for infringement of a patent); Bowles v. Trowbridge, 60 F.Supp. 48 (N.D.Cal.1945) (action for treble damages under E.P.C.A.; privilege applies); Malouf v. Gully, 187 Miss. 331, 192 So. 2 (1939) (immunity statute construed to protect against a suit for statutory penalties for illegal liquor sales); Serio v. Gully, 189 Miss. 558, 198 So. 307 (1940) (same); Zambroni v. State, 217 Miss. 418, 64 So.2d 335 (1953) (same); Bailey v. Muse, 227 Miss. 51, 85 So.2d 918 (1956) (same); Boyle v. Smithman, 146 Pa. 255, 274, 23 A. 397, 398 (1892) (action to recover penalties for not posting a statement of business done, under a statute declaring that the defendant 'shall forfeit and pay' $1,000 for each act; privilege applied); City of Philadelphia v. Cline, 158 Pa.Super. 179, 44 A.2d 610 (1945) (action under municipal ordinance to recover penalties for failure to file tax returns; privilege applies); Anonymous, 1 Vern. 60, 23 Eng.Rep. 310 (Ch.D. 1682) (bill for tithes; discovery declined, as a treble penalty was collectible; principle apparently sanctioned). These cases hold that the privilege is inapplicable: Perkins Oil Well Cementing Co. v. Owen, 293 F. 759 (S.D.Cal.1923) (patent infringement suit for treble damages; privilege inapplicable); Standard Oil Co. v. Roxana Petroleum Corp., 9 F.2d 453 (S.D.Ill.1925) (same); United States ex rel. Marcus v. Hess, 317 U.S. 537, 69 S.Ct. 379, 87 L.Ed. 443 (1942) (semble; 'qui tam' for double damages and penalty held not within proscription of double jeopardy clause); Bowles v. Chew, 53 F.Supp. 787 (N.D.Cal. 1944) (action for treble damages by Administrator under Emergency Price Control Act; privilege not applicable); Bowles v. Seitz, 62 F.Supp. 773 (W.D.Tenn.1945) (same); Amato v. Porter, 157 F.2d 719 (10th Cir.1946) (same); Crary v. Porter, 157 F.2d 410 (8th Cir.1946) (same); Woods v. Robb, 171 F.2d 539 (5th Cir.1948) (same); Southern Ry. v. Bush, 122 Ala. 470, 26 So. 168 (1899) (in an action for death, the damages, though punitive and not compensatory, are not a penalty, and the privilege does not apply to the defendant); Levy v. Superior Court, 105 Cal. 600, 38 P. 965, 29 L.R.A. 811 (1895) (administrator's citation of one charged with concealing and embezzling the estate of the deceased; the statute provided for double damages; an order of compulsory examination was held proper, the statute being remedial, not penal).

The complaint alleges that all nine defendants, pursuant to a preconcerted conspiracy, came to plaintiff's house about 8:30 p. m. on Saturday, 5 May 1962, and unlawfully and maliciously assaulted her and certain specified members of her family, and shot into automobiles and into the house.

In this State a person may be arrested and held to bail '[i]n an action for the recovery of damages on a cause of action not arising out of contract...