Rawls v. Lupton

• Citation: 137 S.E. 175,193 N.C. 428
• Decision Date: 23 March 1927
• Docket Number: 162.
• Parties: RAWLS v. LUPTON.
• Court: North Carolina Supreme Court

137 S.E. 175

193 N.C. 428

RAWLS v. LUPTON.

No. 162.

Supreme Court of North Carolina

March 23, 1927

Appeal from Superior Court, Pamlico County; Sinclair, Judge.

Action by Z. V. Rawls against E. S. Lupton. From a judgment in favor of plaintiff for less than the amount claimed, he appeals. No error.

D. L Ward, Guion & Guion, and L. I. Moore, all of New Bern, for appellant.

CLARKSON J.

This is an action for assault and battery, brought by plaintiff against defendant. The plaintiff alleges that the assault and battery was willful, wanton, and malicious, and in his prayer for judgment demands punitive, as well as actual, damages.

The issues submitted to the jury and their answers thereto are as follows:

"(1) Did the defendant wrongfully and unlawfully assault and injure the plaintiff, as alleged in his complaint? Answer Yes.

(2) Was said assault willful, wanton, and malicious, as alleged in the complaint? Answer: No.

(3) What damages, if any, is plaintiff entitled to recover from defendant? Answer: $600, less $140 doctor bill--$460."

The plaintiff testified as to the occurrence. in part:

"After he (speaking of defendant) asked me about the letter, he made the statement similar to this, if not the exact words. He said, 'Don't you think you have bedeviled me enough in the last four years?' I said, 'Sheriff, the courts have sustained every matter I have had the last four years, and I don't see why you have taken this attitude.' I said, 'But for the fact that I agreed to a partial compromise of the money you owe the county, you would probably be in the penitentiary to-day.' He then jumped toward me like an angry bull, giving me a severe blow, struck the base of my nose between the eye and nose. I don't know how long I was unconscious, but the next I remember was standing in the hallway of the register of deeds office. I was knocked down from the blow."

Plaintiff's nose was broken from the severity of the assault and battery. Defendant contended that he struck him through sudden anger on account of sudden provocation.

These are numerous exceptions and assignments of error made by plaintiff as to the refusal of the court below to admit certain evidence. There is nothing in the record to indicate or disclose what the answers would have been to the question propounded the witnesses. We cannot assume that they would have been favorable to plaintiff. The burden is on the appellant to show error; therefore the record must set forth and disclose the materiality and competency of the evidence. The record is silent. A long line of unbroken authorities, civil and criminal, support the position here taken. Snyder v. Asheboro, 182 N.C. 708, 110 S.E. 84; State v. Jestes, 185 N.C. 735, 117 S.E. 385; Layton v. Godwin, 186 N.C. 312, 119 S.E. 495; Hosiery Co. v. Express Co., 186 N.C. 556, 120 S.E. 228; Barbee v. Davis, 187 N.C. 78, 85, 121 S.E. 176; State v. Ashburn, 187 N.C. 717, 122 S.E. 833; Smith v. Myers, 188 N.C. 551, 125 S.E. 178; State v. Collins, 189 N.C. 15, 126 S.E. 98; Newbern v. Hinton, 190 N.C. 108, 129 S.E. 181; Hooper v. Trust Co., 190 N.C. 423, 130 S.E. 49; Pace v. McAden, 191 N.C. 137, 131 S.E. 629.

C. S. § 643, is as follows:

"The appellant shall cause to be prepared a concise statement of the case, embodying the instructions of the judge as signed by him, if there be an exception thereto, and the request of the counsel of the parties for instructions if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged. A copy of this statement shall be served on the respondent within fifteen days from the entry of the appeal taken; within ten days after such service the respondent shall return the copy with his approval or specific amendments indorsed or attached; if the case be approved by the respondent, it shall be filed with the clerk as a part of the record; if not returned with objections within the time prescribed, it shall be deemed approved." (Italics ours.)

In Gwaltney v. Assurance Society, 132 N.C. at page 930, 44 S.E. 661 (rehearing denied, 134 N.C. 552, 47 S.E. 122), construing this statute, this court said:

"Each exception to the charge is required by the statute (Code, § 550 [now C. S. 643]), to be 'stated separately in articles numbered,' and no exception should contain more than one proposition, else it is not 'specific' and must be disregarded."

Errors must be specifically assigned. An "unpointed, broadside" exception to the "charge as given," will not be considered. McKinnon v. Morrison, 104 N.C. 354, 10 S.E. 513. Exception to the charge of the court in general terms, not sufficiently specific to call the attention of the court to the particular point claimed to be erroneous, cannot be considered by an appellate court. State v. Webster, 121 N.C. 586, 28 S.E. 254; Pierce v. N.C. Ry. Co., 124 N.C. 83, 32 S.E. 399, 44 L. R. A. 316; Mitchell v. Baker, 129 N.C. 63, 39 S.E. 633; Sigman v. R. R., 135 N.C. 181, 47 S.E. 420; Davis v. Keen, 142 N.C. 496, 55 S.E. 359; Streator v. Streator, 145 N.C. 337, 59 S.E. 112; Jackson v. Williams, 152 N.C. 203, 67 S.E. 755; Lumber Co. v. Moffitt, 157 N.C. 568, 73 S.E. 212; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739; Barefoot v. Lee, 168 N.C. 89, 83 S.E. 247; Nance v. W. U. Tel. Co., 177 N.C. 313, 98 S.E. 838; Bank v. Pack, 178 N.C. 388, 100 S.E. 615; Lanier v. Pullman Co., 180 N.C. 406, 105 S.E. 21; Hale v. Rocky Mount Mills, 186 N.C. 49, 118 S.E. 799.

Under C. S. § 643, supra, and the decisions of this court, the appellant must make "specific" exceptions to the charge of the court below, stating separately, in articles numbered, the errors alleged. For example: Suppose the court below instructed or charged the jury as follows:

["The principle is well established that not only is a person who offers or attempts by violence to injure the person of another guilty of an assault, but no one, by the show of violence, has the right to put another in fear and thereby force him to leave a place where he has the right to be."] To the foregoing charge in bracket or quotation, as the case may be, the plaintiff or defendant, as the case may be, excepted. Exception No. 1.

Battery is ["Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent"]. To the foregoing charge in bracket or quotation, plaintiff or defendant, as the case may be, excepted. Exception No. 2.

["The actual offer to use force to the injury of another is assault; the use of it is battery; hence, the two terms are commonly combined in the term 'assault and battery."'] To the foregoing charge in bracket or quotation the plaintiff or defendant, as the case...