Blow v. Joyner

• Decision Date: 04 October 1911
• Citation: 72 S.E. 319,156 N.C. 140
• Parties: BLOW v. JOYNER.
• Court: North Carolina Supreme Court

72 S.E. 319

156 N.C. 140

BLOW v. JOYNER.

Supreme Court of North Carolina

October 4, 1911

Appeal from Superior Court, Hertford County; Carter, Judge.

Action by S. C. Blow against E. H. Joyner. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Where plaintiff was only entitled to nominal damages as a matter of law, in a forcible trespass action, the judgment being by default and inquiry, and the evidence of actual damage being conflicting, it was error to charge that plaintiff was entitled to some "actual" damages in any view of the case; the term "actual damages," as used meaning "substantial," as distinguished from "nominal," damages.

Civil action to recover damages for alleged forcible trespass accompanied by assault on the person. Judgment by default and inquiry was entered. The cause having been placed on the calender for the purpose, the same came on for hearing on the issue as to damages. Verdict was rendered and damages assessed in plaintiff's favor for $300.

D. C Barnes, for appellant.

Winborne & Winborne, for appellee.

HOKE J.

The gravamen of plaintiff's cause of action is stated in the complaint as follows: "That, while plaintiff and his family were in such occupancy of said buildings and premises the defendant, on Friday, the 27th day of August, 1909, unlawfully and wrongfully and with a strong hand entered and forcibly trespassed on said premises, and in the lot and yard on said premises, where the plaintiff and his family were living, armed with a pistol, and in the presence of the plaintiff and his wife, and theatened, cursed, abused, and assaulted plaintiff, and refused to leave said premises and said yard, after he was commanded by plaintiff and his wife to leave said yard and said premises, and remained thereon, using profane and vulgar language, to the great annoyance of plaintiff and his wife and to the great damage of plaintiff." And there was evidence on part of plaintiff tending to support the allegations as made, except there seems to be no reference to a pistol in the statement of the witnesses, a difference in no way affecting the questions presented.

It was objected to the validity of the trial that his honor charged the jury that the "judgment by default and inquiry established the fact that the defendant was a trespasser, and by reason of that fact defendant was estopped from denying that he was a trespasser upon the possessions of the plaintiff," but the objection, in our opinion, is not well taken. The authorities are very generally to the effect that, where a complaint has been properly filed, showing a right of action for unliquidated damages, a judgment by default and inquiry establishes plaintiff's right of action and that he is entitled at least to nominal damages. Osborne v. Leach, 133 N.C. 428, 45 S.E. 783; 2 Black on Judgments, § 698; 23 Cyc. p. 752; 6 Enc. Pl. & Pr. p. 127. And in this state it is further held that such a judgment concludes on all issuable facts properly pleaded, and that evidence in bar of plaintiff's right of action is not admissible on the inquiry as to damages. MeLeod v Nimocks, 122 N.C. 438, 29 S.E. 577; Lee v. Knapp, 90 N.C. 171; Parker & Gatling v. House, 66 N.C. 374; Parker & Gatling v. Smith, 64 N.C. 291; Garrard v. Dollar, 49 N.C. 175, 67 Am. Dec. 271. In McLeod v. Nimocks it is said: "The judgment by default and inquiry, the defendant having said nothing in answer to plaintiff's complaint, was conclusive that the plaintiff had a cause of action against the defendant of the nature declared in the complaint, and would be entitled to nominal damages without any proof." The statement sometimes made, that a judgment of this kind "merely admits a cause of action, while the precise character of the cause of action and the extent of defendant's liability remains to be determined," simply means, as stated, that a judgment by default and inquiry established a right of action in plaintiff of the kind stated in the complaint, and entitling plaintiff to nominal damages, but that the facts and attendant circumstances giving character to the transactions and...