Benton v. Collins
| Decision Date | 24 October 1899 |
| Citation | 34 S.E. 242,125 N.C. 83 |
| Parties | BENTON v. COLLINS. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Franklin county; Timberlake, Judge.
Action by W. A. Benton against R. V. Collins for damages for injuries resulting from an assault and battery. There was a judgment for plaintiff, and defendant appeals. Affirmed.
A new trial may be granted where the damages are insufficient.
F. S Spruill, for appellant.
C. M Cooke, for appellee.
In the first trial of this action,--an action for damages growing out of an assault and battery committed by defendant, Ruffin Collins, upon the plaintiff,--all of the issues were found for the plaintiff. In response to the issue as to the amount of damages which the plaintiff was entitled to recover, the jury answered $350, and his honor set aside that part of the verdict on the ground that the damages assessed were inadequate, and let the others stand. On appeal from that ruling, this court declared the appeal premature; and upon a second trial the defendant, Ruffin Collins, renewed his exception to the order on the first trial setting aside that part of the verdict as to damages, and the granting of a new trial on that issue alone. The two issues which were eliminated from the second trial, and which were found by the jury for the plaintiff on the first trial, to wit, the first and third issues, were in these words: (1) "Did the defendant, R. V. Collins, wrongfully damage the plaintiff, as alleged in the complaint?" (3) "Was the deed of trust executed by R. V. Collins and wife to S.E. Eure with the fraudulent intent to hinder and delay and defraud said R V. Collins' creditors?" Upon the second trial, the jury, in response to the single issue as to damages, answered $600. His honor gave judgment for the plaintiff, and against the defendant, R. V. Collins, for that amount, and after reciting that the conveyance by the defendant, R. V. Collins, and his wife, of his lands lying in Nash and Franklin counties, had been conveyed in fraud of his creditors, ordered that, subject to the homestead exemption of defendant, R. V. Collins, the lands to fraudulently conveyed be sold to satisfy the plaintiff's judgment, and the clerk was instructed to appoint three commissioners to appraise and allot to the defendant, R. V. Collins, his homestead therein, who should report their proceedings to the next term of Franklin superior court; and it was further ordered that the excess over the homestead should be sold by a commissioner then named by the court, and that his report should be returned to the next term of that court.
The case is before us on two exceptions,--one to the ruling of his honor in the first trial setting aside the verdict for inadequacy of damages, and the ordering of a new trial on that one issue alone; and the other to the judgment, as to its form and substance, as to the allotment of the homestead, and the sale of the excess. Both points raised on the appeal are important as matters of court practice and procedure, and as matters affecting the substantial property rights of the defendant.
On the question as to the power of the superior courts to grant new trials on one or more of several issues, and to let the others stand, and the practice of this court to order new trials on particular or restricted issues, the authorities are numerous, and cover a long series of years. The following are some of them: Strother v. Railroad Co., 123 N.C. 197, 31 S.E. 386; Silver Val. Min. Co. v. North Carolina Smelting Co., 122 N.C. 542, 29 S.E. 940; Rittenhouse v. Railway Co., 120 N.C. 544, 26 S.E. 922; Nathan v. Railway Co., 118 N.C. 1066, 24 S.E. 511; Pickett v. Railroad Co., 117 N.C. 616, 23 S.E. 264; Blackburn v. Insurance Co., 116 N.C. 821, 21 S.E. 922; Tillett v. Railroad Co., 115 N.C. 662, 20 S.E. 480; Jones v. Swepson, 94 N.C. 700; Boing v. Railroad Co., 91 N.C. 199; Price v. Deal, 90 N.C. 290; Jones v. Mial, 89 N.C. 89; Lindley v. Railroad, 88 N.C. 547; Crawford v. Manufacturing Co., Id. 554; Roberts v. Railroad Co., Id. 560; Allen v. Baker, 86 N.C. 91; Burton v. Railroad Co., 84 N.C. 192; Merony v. McIntyre, 82 N.C. 103; Holmes v. Godwin, 71 N.C. 306; Key v. Allen, 7 N. C. 523; Barnes v. Brown, 69 N.C. 439.
Before such partial new trials, however, are granted, it should clearly appear that the matter involved is entirely distinct and separable from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters. Such partial trials are not of strict legal right, but of sound legal discretion. There was no violation of the limitation in such matters in the case before us. The issues were clearly separable, and each one could have been answered without dependence or complication upon the others.
The contention of the defendant is that on the second trial various matters favorable to the defendant on the issue as to the amount of damages might have been cut off, which would have been relevant and competent on the first trial under the first issue, and that, therefore, the defendant might have suffered by the manner in which the case was tried on the second trial. The argument of the defendant's counsel is that upon the first issue, as submitted in the first trial "Did the defendant, R. V. Collins, wrongfully damage the plaintiff, as alleged in the complaint?" all the circumstances attending the assault are drawn out. If there be anything to repel malice, to mitigate the damages,--any conduct on the part of the plaintiff provoking the assault, as foul language or insulting words,--it comes out in the investigation of the evidence on the first issue, and the same jury hears the evidence as to the extent of the wound, the loss of time, pain, and permanence and effect of injury; and the jury which hears the whole could judge more impartially all of the issues than another jury could, hearing only the testimony on the issue as to damages. The answer to that argument is that whatever evidence could have been introduced on the first trial upon the first issue, in mitigation of damages,--such matters as the defendant's counsel urged in his argument,--could be, as a matter of law, gone into on the second trial upon the issue as to damages. If no attempt was made by the plaintiff in the second trial to show malice in the defendant in making the battery upon the plaintiff, then the damages could have been only actual damages. If malice or aggravation was attempted to be proved, to recover punitive damages, then it was permissible for the defendant to show the conduct of the plaintiff as to provocation, in mitigation of damages. "The general rule is that anything which is a complete answer to the action...
To continue reading
Request your trial