Hyatt v. McCoy

• Decision Date: 21 December 1927
• Docket Number: 582.
• Citation: 140 S.E. 807,194 N.C. 760
• Parties: HYATT v. McCOY.
• Court: North Carolina Supreme Court

140 S.E. 807

194 N.C. 760

HYATT v. McCOY.

No. 582.

Supreme Court of North Carolina

December 21, 1927

Appeal from Superior Court, Macon County; Black, Judge.

Action by Perry Hyatt against W. L. McCoy. From the judgment, both parties appeal. Reversed on plaintiff's appeal. On defendant's appeal, no error.

See also, 194 N.C. 25, 138 S.E. 405.

In action for alienation of wife's affections plaintiff's testimony of conversations between himself and wife as to her relations with defendant held competent.

The plaintiff brought suit to recover damages for the seduction of his wife and the alienation of her affections. The jury returned the following verdict:

"(1) Did the defendant, W. L. McCoy, alienate the affections of plaintiff's wife, as alleged in the complaint? Answer Yes.

(2) Did the defendant, W. L. McCoy, have immoral relations with the plaintiff's wife, as alleged in the complaint? Answer Yes.

(3) What amount of actual damages, if any, is the plaintiff entitled to recover? Answer: $10,000.

(4) What amount of punitive damages, if any, is the plaintiff entitled to recover? Answer: $2,000."

Judgment in favor of plaintiff for $10,000. Both the plaintiff and the defendant appealed for error assigned. On plaintiff's appeal, reversed; on defendant's appeal, no error.

Horn & Poindexter, of Franklin, and Bryson & Bryson, of Bryson City, for plaintiff.

Moody & Moody, of Murphy, McKinley Edwards, of Bryson City, and H. G. Robertson, of Franklin, for defendant.

Plaintiff's Appeal.

ADAMS J.

When the plaintiff moved for judgment upon the verdict, the trial judge, "in the exercise of his discretion," reduced the sum awarded as actual damages in answer to the third issue from $10,000 to $8,000, and the plaintiff excepted. The exception presents the question whether the order reducing the damages was a matter of discretion and therefore reviewable only in case of abuse or whether it involved a matter of law or legal inference within the meaning of article 4, § 8, of the Constitution.

It is provided by statute that "the judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial *** for excessive damages" (C. S. § 591); and it has been said "that there is no reason which can be advanced in favor of setting aside verdicts because of excessive damages, which does not apply to setting them aside for inadequacy of damages." Benton v. Collins, 125 N.C. 83, 34 S.E. 242, 47 L. R. A. 33. So it has been held in a number of cases that to set aside a verdict and to grant a new trial for excessive or inadequate damages is, as a rule, the irreviewable right of the presiding judge. Benton v. Railroad, 122 N.C. 1008, 30 S.E. 333; Burns v. Railroad, 125 N.C. 304, 34 S.E. 495; Gray v. Little, 127 N.C. 304, 37 S.E. 270; Phillips v. Telegraph Co., 130 N.C. 513, 41 S.E. 1022, 89 Am. St. Rep. 868; Abernethy v. Yount, 138 N.C. 337, 50 S.E. 696; Boney v. Railroad, 145 N.C. 248, 58 S.E. 1082; Billings v. Observer, 150 N.C. 540, 64 S.E. 435; Decker v. Railroad, 167 N.C. 26, 83 S.E. 27.

But this court has been equally positive in holding that the trial judge cannot amend, reform, or reduce the amount of a verdict and give judgment thereon as reformed or amended without the consent of the party in whose favor the verdict was returned. Shields v. Whitaker, 82 N.C. 516; Sprinkle v. Wellborn, 140 N.C. 163, 52 S.E. 666, 3 L. R. A. (N. S.) 174, 111 Am. St. Rep. 827; Isley v. Bridge Co., 143 N.C. 51, 55 S.E. 416; Cohoon v. Cooper, 186 N.C. 26, 28, 118 S.E. 834. Many of the authorities sustaining this position have been collected and cited in the note to Tunnel Co. v. Cooper, 39 L. R. A. (N. S.) 1064. See, also, Harvey v. Railroad, 153 N.C. 567, 69 S.E. 627. In Brown v. Power Co., 140 N.C. 333, 52 S.E. 954, 3 L. R. A. (N. S.) 912, the verdict was reduced, but the plaintiff did not except.

In reducing the compensatory damages from $10,000 to $8,000 in disregard of the plaintiff's objection to the diminution and in giving judgment on the verdict for the diminishing amount, the court committed an error which the plaintiff is entitled to have corrected. To this extent the judgment should be reformed.

Reversed.

Defendant's Appeal.

Of the 160 assignments of error, 68 are left out of the appellant's brief and must be treated as abandoned. 192 N.C. 853, rule 28. We have examined those which have not been abandoned, and find it as unnecessary as it is inexpedient to discuss them separately. Many of them, relating to the same subject-matter, may be considered together. Those in the first group, subdivided as (a), (b), (c), and (d), in the appellant's brief, have reference to testimony which was admitted for the purpose either of corroboration or of showing the means by which the defendant alienated the affections of the plaintiff's wife, including the offer of money, efforts to have her leave the state, repeated expressions of his affection, or the effect the defendant's conduct had on the mind of the plaintiff. We see no reason for the rejection of this evidence; it was certainly pertinent to the first issue. And in our opinion, when considered in connection with the first two issues, the court's refusal to strike out the whole of the fifth and sixth paragraphs of the complaint was free from error. These paragraphs set forth the paralyzed condition of the plaintiff, resulting from personal injury received while in the defendant's service, and, according to the plaintiff's evidence, made use of by the defendant for the accomplishment of his purpose. The court withdrew from the jury all evidence tending to show that since the plaintiff's injury there had been no intercourse between him and his wife, and expressly cautioned the jury, not only that this evidence should not be considered, but that the testimony of Mrs. Hyatt should be considered so far as it tended to establish the matters involved in the first but not in the second issue.

The admission of improper or incompetent evidence, which is withdrawn from the jury and stricken out, will not constitute reversible error, especially when the jury is particularly instructed not to consider it or to be influenced by it in making up its verdict. In State v. May, 15 N.C. 328 Chief Justice Ruffin remarked, "If improper evidence be...