Bowden v. Bailes

• Decision Date: 19 December 1888
• Citation: 8 S.E. 342,101 N.C. 612
• Parties: BOWDEN v. BAILES.
• Court: North Carolina Supreme Court

8 S.E. 342

101 N.C. 612

BOWDEN v. BAILES.

Supreme Court of North Carolina

December 19, 1888

Appeal from superior court, Mecklenburg county; E. T. BOYKIN, Judge.

Defendant while a witness in his own behalf repeatedly testified to irrelevant matters, in spite of the protests of his own counsel, and in defiance of the judge's order to desist. He also made threats and interruptions while plaintiff's counsel was addressing the jury. The judge finally said addressing defendant's counsel: "I give you notice of a rule on your client to show cause why he should not be attached for contempt." Held, that defendant could not complain that this remark tended to prejudice him before the jury.

Batchelor & Devereux, for appellant.

Jones & Tillett, for appellee.

SMITH C.J.

The complaint charges that the defendant, on divers occasions falsely and maliciously spoke, of and concerning the plaintiff, the defamatory words set out in the different causes of action therein contained, imputing incontinency, and so upon issues the jury find and assess her damages by reason thereof at $1,500. Upon the trial one Edwards, after objection, was allowed to testify to the pecuniary condition of the defendant, and to this his counsel entered an exception, which in this court was abandoned as untenable. Adcock v. Marsh, 8 Ired. 360; Reeves v. Winn, 97 N.C. 246, 1 S.E. Rep. 448.

The defendant became a witness on his own behalf, and during his examination grossly misbehaved; repeatedly testifying to irrelevant matters in spite of protest of plaintiff's counsel and of his own, and in disregard of the judge's order to desist. During the opening speech of plaintiff's counsel, and while he was adverting to defendant's conduct, the latter raised his hand, and shook his finger at the speaker. During the closing argument for the plaintiff, when counsel was contrasting the testimony of defendant with that of his own witnesses, defendant rose, and "in an insolent and threatening manner," demanded, "Do you dispute my word?" and was answered, "Yes, I do, most emphatically." So, after argument, while the judge was about to begin his charge, defendant asked, "Your honor, may I speak a word?" and received the reply, "No,--sit down;" which he did. Thereupon the judge addressing his counsel, said: "Gentlemen, I give you notice of a rule on your client to show cause why he should not be attached for contempt, to be heard on next Monday morning." This remark is objected to as calculated to prejudice defendant's case before the jury. We recapitulate the facts as to what transpired, which show great forbearance on the part of the judge in tolerating such conduct, and will only say that, if the defendant suffered, it was in consequence of his own defiant manner and conduct, of which he cannot complain.

The remaining exceptions are to the following charge: "If the words were spoken by defendant as charged, the plaintiff is entitled to some damages. If the jury should find that the words were spoken by defendant of the plaintiff as charged but that the defendant, in so speaking them, was not actuated by any actual malice, then the plaintiff is entitled to recover compensatory damages only, by which is meant such damages as will compensate plaintiff for any injury to her character which you may find from the evidence she has sustained by reason of the words so spoken. On the other hand, if the jury should find that the words charged were spoken by the defendant of the plaintiff, and that the defendant, in so speaking them, was actuated by actual malice, they may award exemplary or vindictive damages; and so they may award exemplary or vindictive damages if they should find from the evidence that the words were spoken by defendant as charged, and that the conduct of defendant was marked by gross and willful wrong, or was oppressive, and, in estimating the amount of damages, if the jury should find that the words were spoken as charged, and that they were spoken with malice, they would consider the evidence as to the pecuniary condition of defendant for the purpose of determining the amount of damages to be awarded. In estimating the amount of damages, the jury may consider in mitigation thereof the evidence tending to prove the bad character of the plaintiff. By exemplary or vindictive damages is meant such damages as are given, not merely as...