Hoss v. Palmer

• Decision Date: 22 December 1908
• Citation: 150 n.C. 17,63 S.E. 171
• Court: North Carolina Supreme Court
• Parties: HOSS . v. PALMER.

63 S.E. 171

(150 n.C. 17)

HOSS .

v.PALMER.

Supreme Court of North Carolina.

Dec. 22, 1908.

Appeal and Error (§ 105^*)—Decisions Reviewable—Voluntary Nonsuit.

A ruling of the court that plaintiff under his complaint cannot recover punitive damages affects only the quantum of damages, and plaintiff can except to the ruling, and have it reviewed on appeal from the final determination; and therefore a judgment of voluntary nonsuit to which plaintiff submitted after the court overruled his motion to amend his complaint is prematurely taken, and an appeal from it will not lie.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 722; Dec. Dig. § 105.*] Appeal from Superior Court, Cherokee | County; Peebles, Judge.

Action by C. C. Hoss against Henry Palmer. From a judgment of voluntary nonsuit, plaintiff appeals. Appeal dismissed.

This action was brought to recover damages for the seduction of the plaintiff's daughter. Among other issues, the plaintiff tendered the following: "What punitive or exemplary damages, if any, is plaintiff entitled to recover?" After the examination of plaintiff in his own behalf had progressed for a considerable time, plaintiffs counsel asked him a question bearing upon the said issue, which was objected to by the defendant, and sustained by the court upon the ground that punitive damages could not be awarded to the plaintiff under the form of his complaint. Plaintiff excepted. Plaintiff then asked to be allowed to amend his complaint. Being satisfied from plaintiff's testimony that defendant was not the first man who had had sexual intercourse with plaintiff's daughter, the court, in the exercise of its discretion, declined to allow the amendment, and plaintiff excepted. In deference to the opinion of the court that the allegations contained in the complaint were not sufficient to allow a recovery of punitive damages, the plaintiff submitted to a nonsuit, and appealed.

Dillard & Bell, for appellant.

E. B. Norvell, Ben Posey, and J. D. Mallonee, for appellee.

WALKER, J. This case is governed by Merrick v. Bedford, 141 N. C. 504, 54 S. E. 415, as will appear by the following language of the court in that case: "We think, furthermore, that, according to plaintiff's brief and argument, the adverse ruling complained of related solely to the issue of damages, and not to the cause of action, upon the establishment of which the right to recover damages depends. Under the ruling the plaintiff would have recovered some damages, much more than nominal. Under the decisions of this court the plaintiff should have continued the trial, and by noting exceptions properly he would have been able to have this court review every ruling made in the court below. We think the nonsuit was voluntary, premature, improvidently taken, and that under our decisions an appeal from a nonsuit under such...