Billings v. Charlotte Observer

• Decision Date: 28 April 1909
• Citation: 64 S.E. 435,150 N.C. 540
• Parties: BILLINGS v. CHARLOTTE OBSERVER et al.
• Court: North Carolina Supreme Court

64 S.E. 435

150 N.C. 540

BILLINGS v. CHARLOTTE OBSERVER et al.

Supreme Court of North Carolina

April 28, 1909

Appeal from Superior Court, Rockingham County; Ward, Judge.

Action for libel by C. M. Billings against the Charlotte Observer and others. From an order setting aside the award of damages as excessive, plaintiff appeals. Appeal dismissed.

Though the amount of punitive damages is for the jury, its finding may be set aside, if excessive.

Civil action to recover damages for alleged libel. There was allegation, with evidence, on the part of plaintiff tending to show the publication of a libelous article in defendant paper, charging plaintiff with improper conduct at Blackville, S. C., and at Waynesville, N.C. Defendant company, admitting the publication of the articles in question, averred the truth of the facts contained therein, and introduced testimony tending to support its position.

On issues submitted the jury rendered the following verdict:

"(1) Did the defendants publish of and concerning the plaintiff the matters and things alleged in the complaint? Answer Yes.

"(2) Were the matters and things published of the plaintiff and alleged to have occurred at and around Blackville, S. C., true? Answer: Yes.

"(3) Were the matters and things published of the plaintiff as happenings at Waynesville, N. C., true? Answer: No.

"(4) What damages, if any, is the plaintiff entitled to recover? Answer: $5,000."

Upon the coming in of the verdict, the defendants moved for a new trial on the last issue, on the ground that the amount was excessive, and order was thereupon made as follows: "The court, being of opinion that the amount of damages was excessive, hereby sets aside in its discretion said issue of damages, and awards a new trial thereon." Plaintiff moves the court to set aside second issue for errors to be assigned in the case on appeal. Overruled, and exception by plaintiff. Plaintiff appeals to the Supreme Court.

Morehead & Sapp, Justice & Broadhurst, Glidewell & Lane, and A. D. Ivie, for appellant.

Osborne, Lucas & Cocke, Burwell & Cansler, and Scott & Reid, for appellees.

HOKE J.

We do not advert to the questions chiefly raised in the plaintiff's case on appeal, for the reason that, under numerous and well-considered decisions of this court, the appeal must be dismissed as having been prematurely taken. This position is well established, and the question has usually been raised on an issue as to damages, the very case presented here. Rogerson v. Lumber Co., 136 N.C. 266, 48 S.E. 647; Benton v. Collins, 121 N.C. 66, 28 S.E. 59; Hilliard v. Oram, 106 N.C. 467, 11 S.E. 514; Hicks v. Gooch, 93 N.C. 112.

In Benton v. Collins, supra, Faircloth, C.J., delivering the opinion, said: "The appeal is premature. He should have noted his exception and proceeded with the trial, and brought the whole case to this court on final judgment. This course would not affect any substantial right. This question has been so often decided as to need only a reference to Hilliard v. Oram, 106 N.C. 467, 11 S.E. 514, and the numerous cases cited." In Hilliard v. Oram, supra, Clark, J., said: "The appeal of the defendants is premature. They should have noted their exceptions, and, after the trial is completed by a finding upon the other issue and a final judgment, an appeal will lie. The court will not try causes by 'piecemeal."' And, to like effect, Smith, C.J., in Hicks v. Gooch, supra, referred to the question as follows: "The general principle is that, when a trial is entered upon, it should embrace and determine the whole subject-matter in controversy, so that a final judgment may be entered, any errors committed in its progress being open to revision and correction in one appeal, while the court could not tolerate a succession of appeals upon separate and fragmentary parts. The ruling has been frequently since recognized and acted on. We refer to but a few of them; the most recent: Commissioners v. Satchwell, 88 N.C. 1; Lutz v. Cline, 89 N.C. 186; Jones v. Call, 89 N.C. 188; Grant v. Reese, 90 N.C. 3; Arrington v. Arrington, 91 N.C. 301. The practice thus established upon its intrinsic merits, and to avoid useless and prolonged litigation, must be upheld."

The authorities with us are also to the effect that, unless some question of law or legal inference is involved, the granting or refusing a new trial, upon all or any one of the issues rests in the sound discretion of the lower court; and, where it appears that the question has been determined in the exercise of this discretion, the action of the court thereon is not subject to review. Abernethy v. Yount, 138 N.C. 337, 50 S.E. 696; Benton v. Collins, 125 N.C. 94, 34 S.E. 242, 47 L. R. A. 33; Carson v. Dellinger, 90 N.C. 226; Moore v. Edminston, 70 N.C. 481. True, as stated in Jarrett v. Trunk Co., 144 N.C. 302, 56 S.E. 937, and in Benton v. Collins, 125 N.C. 94, 34 S.E. 242, 47 L....