Lewis v. Fountain

• Decision Date: 17 February 1915
• Docket Number: (No. 73.)
• Citation: 168 N.C. 277,84 S.E. 278
• Parties: LEWIS. v. FOUNTAIN.
• Court: North Carolina Supreme Court

84 S.E. 278

168 N.C. 277

LEWIS.

v.FOUNTAIN.

(No. 73.)

Supreme Court of North Carolina.

Feb. 17, 1915.

Appeal from Superior Court, Edgecombe County; Ferguson, Judge.

Action by P. A. Lewis against L. E. Fountain. From a judgment for plaintiff, defendant appeals. Affirmed.

G. M. T. Fountain & Son, of Tarboro, and F. S. Spruill, of Rocky Mount, for appellant.

T. T. Thorne, of Rock Mount, and W. O. Howard, of Tarboro, for appellee.

CLARK, C. J. This is an action for damages for injuries received in a personal assault. The plaintiff's evidence is that the defendant was drunk, and at request of his sister, the defendant's wife, to protect her against the defendant, who was threatening her with a pistol, the plaintiff went over to defendant's house to endeavor to quiet him, and that the defendant shot him twice with a pistol without any provocation, one of the wounds cutting an artery, and that, by reason of his wounds, he was unable to work for 12 months, suffered great bodily pain, and was sent to Johns Hopkins in Baltimore for treatment at considerable expense.

The defendant's testimony is that the plaintiff came over and they got into an altercation; that the plaintiff fired first, and he admits that he then wounded the plaintiff as alleged, but avers that it was done in self-defense.

The first exception, that the judge refused to admit evidence that the defendant's wife had made a different statement as to her husband's conduct towards her from that which she had made on the trial, cannot be sustained. It was merely a collateral mat-ter. State v. Leak, 156 N. C. 644, 72 S. E. 567; State v. Williams, 168 N. C. ——, 83 S. E. 714.

The second exception is misconduct on the part of a juror. The judge finds the facts to be that the juror, after the evidence was in, took dinner at the house of the owner of the house where the shooting had taken place, but that none of the parties to this action were there; that while at the house there was no reference made as to the facts of the case on trial; and that the juror did not make any inspection of or look at the marks made by the pistol balls in the house. The court found, as a conclusion of fact, that there was no improper conduct on the part of the juror and no improper influence. The circumstances must be such as not merely to put suspicion on the verdict because there was opportunity and a chance for misconduct, but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge. Moore v. Edmiston, 70 N. C. 481; State v. Brittain, 89 N. C. 483; Baker v. Brown, 151 N. C. 17, 65 S. E. 520; State v. Tilghman, 33 N. C. 552. Besides, in this case, the knowledge of the juror having gone to the house was acquired by the defendant before verdict. Having taken the chances of a favorable verdict, the defendant is now estopped to impeach it on that ground. Pharr v. Railroad, 132 N. C. 423, 44 S. E. 37.

As to exceptions 2 and 3, the prayers for instruction were substantially given. It was not necessary that the identical language should be used. Southerland v. Railroad, 158 N. C. 327, 74 S. E. 102; Board of Education v. Roanoke, 158 N. C. 313, 73 S. E. 994. The charge given presented every phase of the controversy with correct instructions as to the law applicable, and a new trial will not be awarded for failure to give instructions asked, though they were correct propositions of law. Muse v. Railroad, 149 N. C. 452, 63 S. E. 102, 19 L. R. A. (N. S.) 453.

Even though the plaintiff invited the assault by insulting language or provoked it by his conduct, this would not bar the recovery in a civil action. As in criminal actions, no words, however violent or insulting, justify a blow, but, if a blow follows, both are guilty, so, in a civil action, the provocation is a matter in mitigation and not a defense. Palmer v. Railroad, 131 N. C. 250, 42 S. E. 604; Williams v. Gill, 122 N. C. 967, 29 S. E. 879.

When two men fight together, thereby creating an affray, each is guilty of assault and battery upon the other, and each can maintain an action therefor. Bell v. Hansley, 48 N. C. 131. In White v. Barnes, 112 N. C. 327, 16 S. E. 922, the court sustained the following charge:

"If the jury believe that Barnes struck White with a stick described in evidence and broke his nose, the plaintiff is entitled to recover, even though they believe that White entered the fight willingly."

The court charged:

"The defendant having admitted that he fired his...