Rooks v. Bruce

• Decision Date: 02 February 1938
• Docket Number: No. 758.,758.
• Citation: 195 S.E. 26,213 N.C. 68
• Court: North Carolina Supreme Court
• Parties: ROOKS. v. BRUCE et al.

195 S.E. 26

213 N.C. 68

ROOKS.

v.BRUCE et al.

No. 758.

Supreme Court of North Carolina.

Feb. 2, 1938.

Appeal from Superior Court, Forsyth County; E. C. Bivens, Judge.

Action by Elizabeth Rooks against Dr. W. H. Bruce and another to recover damages for injuries inflicted by unlawful assault. From a judgment for defendant Bruce, plaintiff appeals.

No error.

F. W. Williams, of Winston-Salem, for appellant.

Efird & Liipfert, of Winston-Salem, for appellee Bruce.

Price & Jones, of Winston-Salem, for appellee Morehead.

SCHENCK, Justice.

This is an action to recover damages for injuries alleged to have been inflicted by an unlawful and willful assault upon the plaintiff by the defendants.

The appellant assigns as error the granting of a motion for judgment as incase of nonsuit as to the defendant More-head lodged when the plaintiff introduced her evidence and rested her case. C.S. § 567. This assignment of error cannot be sustained. The plaintiff in her own testimony says: "Morehead did not curse or abuse me at all. The only thing More-head did was to take hold of Dr. Bruce. * * * Morehead didn't scare me."

The appellant assigns as error the granting of a motion for judgment as in case of nonsuit as to the defendant Bruce "on the action charging trespass" lodged when the plaintiff had introduced her evidence and rested her case. C.S. § 567. This assignment cannot be sustained. There is neither allegation nor evidence of a cause of action for trespass other than that for an assault. The motion for judgment as of nonsuit as to the. defendant Bruce of the action for an unlawful and willful assault was denied.

There was evidence for the plaintiff tending to show that the defendant Bruce entered the place of business of the plaintiff, a hairdressing establishment, and threatened plaintiff by cursing her and by placing his hand on his hip pocket, and attempted to strike the plaintiff, and thereby caused her to stop her work and leave the place at which she was working.

There was evidence for the defendant tending to show that he did not enter the place of business of the plaintiff, did not threaten her, and did not attempt to strike her.

The court submitted the following issues:

(1) Did the defendant unlawfully and wrongfully assault the plaintiff as alleged in the complaint?

(2) What actual damages, if any, is the plaintiff entitled to recover of the defendant?

(3) What punitive damages, if any, is the plaintiff entitled to recover of the defendant?

The jury answered the first issue in the negative, and left the remaining issues unanswered.

From judgment accordant with the verdict, the plaintiff appealed, assigning errors.

The first group of assignments of error are to the rulings upon the evidence which relate to the measure of damages. If such rulings were erroneous, they were rendered harmless by the answer to the first issue. Brewer v. Ring and Valk, 177 N.C. 476, 99 S.E. 358.

The appellant assigns as error the fact that the court permitted counsel for defendant to speak privately to the defendant while he was a witness on the stand. It appears that the court granted this request of counsel in its discretion. In this there was no error, especially since it does not appear what counsel said to the witness, his client. "The court below is given large discretionary power as to the conduct of a trial. Bowman v. Howard, 182 N.C. 662, 110 S.E. 98; Banking Co. v. Walker, 121 N.C. 115, 28 S.E. 253; Shober v. Wheeler, 113 N.C. 370, 18 S.E. 328; State v. Anderson, 101 N. C. 758, 7 S.E. 678; Cheek v. Watson, 90...