Bryant v. Carrier
| Decision Date | 28 September 1938 |
| Docket Number | 171. |
| Citation | 198 S.E. 619,214 N.C. 191 |
| Parties | BRYANT v. CARRIER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rutherford County; S. J. Ervin, Jr. Special Judge.
Action by Curley Bryant against John Carrier and J. Harvey Carpenter, guardian for John Carrier, for alienation of affections and criminal conversation. From a judgment for plaintiff, defendant appeals.
No error.
Where party desires judge to present particular theory of case or particular phase of law applicable to facts, he should request judge to do so by prayers for instruction tendered in apt time, and, unless this is done, he cannot base objection on failure to so charge.
Action for alienation of affections and criminal conversation. Issues submitted to the jury were answered as follows:
"1. Did the defendant John Carrier alienate the affections of the plaintiff's wife as alleged in the complaint? A No.
2. Did the defendant John Carrier have immoral relations with the plaintiff's wife, as alleged in the complaint? A Yes.
3. What amount of actual damages, if any, is the plaintiff entitled to recover of the defendant John Carrier? A $1,000.
4. Did the defendant John Carrier have sufficient mental capacity at the times named in the complaint to entertain and act with a wrongful intent with respect to the matters complained of? A: Yes.
5. What amount of punitive damages, if any, is the plaintiff entitled to recover from the defendant John Carrier? A: $500.00."
From judgment on the verdict defendants appealed, assigning errors.
Edwards & Edwards and McRorie & McRorie, all of Rutherfordton, for appellants.
Hamrick & Hamrick, of Rutherfordton, for appellee.
The appellants' principal assignments of error relate to the rulings of the court below on matters of evidence and to his charge to the jury.
The exceptions to the admission of the testimony of a witness that he had arrested the defendant for some misdemeanor, and of another that the defendant had been tried in his court, cannot be sustained. One of the issues in the case involved the question of the mental capacity of defendant Carrier, in order to determine his liability for punitive damages. It was alleged in the answer that he was non compos mentis, and it was admitted on the trial that at some time previous to the matters alleged in the complaint he had been declared legally insane and a guardian appointed. While an insane person is civilly liable for his torts, this liability is for compensatory damages only, and does not include punitive damages. Moore v. Horne, 153 N.C. 413, 69 S.E. 409, 138 Am.St.Rep. 675, 21 Ann.Cas. 1350; Ballinger v. Rader, 153 N.C. 488, 69 S.E. 497; Jewell v. Colby, 66 N.H. 399, 24 A. 902; 32 C.J. 751. Hence it was competent for the plaintiff to show, if he could, that the defendant Carrier was not insane at the time of the wrongs complained of, but was mentally competent, and that he had legal capacity to commit the acts alleged with such elements of aggravation as would justify the award of punitive damages. The testimony of the witnesses objected to was in support of their expressed opinion that he was mentally capable. It is uniformly held competent for a witness when testifying as to the mental capacity of a person to state facts showing the witness' knowledge of the person and the basis for his opinion (In re Brown's Will, 203 N.C. 347, 166 S.E. 72; McLeary v. Norment, 84 N.C. 235; Lockhart on Ev. sec. 206), and this evidence was by the court carefully restricted to the question of the witness' opportunity to observe the defendant and to note his mental condition. State v. Ray, 212 N.C. 725, 194 S.E. 482. It may also be noted that testimony of other witnesses to similar effect was admitted without objection. Thompson v. Buchanan, 198 N.C. 278, 151 S.E. 861.
Appellants further excepted to the exclusion of testimony as to the general character and character for chastity of one Alice Surratt with whom the plaintiff is alleged to have had improper relations. Alice Surratt was not offered as a witness by either side and did not go upon the stand, and it is not perceived how evidence of her character could be held material. Lockhart on Evidence, sec. 187. However, the testimony of numerous witnesses as to the conduct of plaintiff with her was admitted without objection. 30 C.J. 1164.
Appellants excepted to the charge of the court for the reason that it failed to instruct the jury that it was necessary for plaintiff to show that plaintiff and his wife were living together at the time of the alleged criminal conversation or, if separated, that the separation was not due to the fault of plaintiff. There was no request that this instruction be given, and there was evidence that the intercourse occurred before the separation, but appellants contend the court should have so charged without formal prayer. "It is well settled as the practice in this state that if a party desires the judge to present a...
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