Branton v. O'Briant

• Decision Date: 31 October 1885
• Citation: 93 N.C. 99
• Court: North Carolina Supreme Court
• Parties: MARY L. BRANTON v. CALVIN O'BRIANT.

93 N.C. 99

MARY L. BRANTON

v.CALVIN O'BRIANT.

Supreme Court of North Carolina.

October Term, 1885.

The action is to recover damages for an ASSAULT, alleged to have been committed on the plaintiff at her residence in Durham, and was tried before Shepherd, Judge, at Spring Term, 1885, of ORANGE Superior Court.

The defendant denied the charge and averred that he, owning the house, had leased it to the plaintiff from month to month for the preceding ten months; that the tenancy had been put an end to by her failure for four months to pay the rent and his giving the notice required by law to surrender the premises; that he had leased the premises to a new tenant, and was there to put him in possession; and that he used no more force than necessary to protect his own person from an angry and violent attack, made on him by the plaintiff, and in the exercise of his proprietary rights. Upon issues submitted to the jury as to the assault and damages sustained, the plaintiff testified that she had occupied the premises at a monthly rent of five dollars from January 1st, 1881, to the first day of November after, when the assault was made, and had paid the rent up to the preceding month, and had received no notice to quit; that a short time before, one of her children informed her that the defendant had been at the house and wanted it, in consequence of which she had rented another and intended to move into it on the day next after the assault was made.

The testimony of the plaintiff and of the defendant, as to the assault and attending circumstances, essentially differed, though the statement of each had corroborative support. It is not needful to set it out in order to present the exceptions, since the jury passed upon it and rendered a verdict for the plaintiff.

In rebuttal of the evidence offered by the defendant, the plaintiff proposed to read the deposition of Lula Williams, taken on July 1st, 1882, at Durham, to which defendant objected, “because it did not appear that the witness was not within seventy-five miles of the Court,” as required by The Code, sec. 1308, par. 9, in order to its being read. Upon the question of competency, the plaintiff swore in substance, that the witness had lived in Durham, and when last seen by her, the witness said she was going to Virginia, and did leave and had never returned. Subpœnas to the sheriffs of Durham and Person for the witness were produced, and both of which were returned that she was not to be found in their counties--the sheriff of the former adding, “her brother says she is in Virginia,” in his return made within a week before the trial.

The only evidence offered by defendant to support his objection is contained in an affidavit of the plaintiff, made at a former term, to obtain a continuance, so much of which as has any bearing upon the matter before the Court, and was relied on by the defendant, is as follows:

Mary L. Branton, the plaintiff in the above entitled action, being duly sworn, says: “she cannot safely go to trial in the above entitled action, because of the absence of Miss Lula Williams, a material witness for her; that a subpœna was duly served on Miss Williams on the 1st day of April, 1882; that on the 22d day of March, 1883, she caused another subpœna to issue to the sheriff of Durham county, the former home of the witness, which subpœna was returned with the endorsement: “Served on all but Miss Lula Williams, who is not to be found in my county; her father, C. H. Williams, says she is in the State of Virginia,” and signed by the sheriff of said county; that prior to the 20th day of June, 1882, learning from Miss Williams that she was going shortly to reside in the State of Virginia, she caused her deposition to be taken, to be used in this action, on the 1st day of July, 1882; that she is now informed since coming to the town of Hillsboro to attend this term of the Superior Court, that Miss Williams is probably within seventy-five miles of the Court, and in the county of Person; that she did not know or have reason to believe that Miss Williams was within seventy-five miles of said Court, till so informed this day after coming in said town; that said deposition was read at the trial of this action at the last term of this Court; that she has had no opportunity to issue a subpœna to Person county for said witness; that said witness is not absent with her procurement or counsel.

Upon this evidence, the Court found as a fact that the witness was not in the State, and admitted the deposition, to which the defendant excepted.

The Court, in response to an instruction prayed for on the part of the plaintiff, charged the jury that if plaintiff rented the house at five dollars per month, and had held over for several months, paying the same rent without any new agreement, that she would be a tenant from month to month, and would be entitled to fourteen days notice to quit; that if such was the case, and such notice was not given, the defendant could not take possession and eject the plaintiff or her property by force and violence, she being present and forbidding the same; and if defendant went into the adjoining room and was about to throw plaintiff's trunk out, and that she did nothing more than warn him not to do so, and that thereupon defendant shoved and kicked her, so that she fell out of the door, that they should find the first issue in favor of the plaintiff. But that if the defendant entered peaceably, went into the adjoining room and invited Cash to bring his things in, and that Cash declined to do so, and that thereupon the plaintiff assaulted him, that the defendant would have a right to use...