Strother Et Ux v. Aberdeen & A. R. Co

• Decision Date: 09 November 1898
• Court: North Carolina Supreme Court
• Parties: STROTHER et ux. v. ABERDEEN & A. R. CO.

31 S.E. 386

123 N.C. 197

STROTHER et ux.

v.ABERDEEN & A. R. CO.

Supreme Court of North Carolina.

Nov. 9, 1898.

Husband and Wife—Action by Wife—Evidence—Admissions by Husband—Insulting Proposals—Provocation—Damages—Appeal— Issue on New Trial.

1. Where the husband was a formal, though not necessary, party to an action by his wife for a tort, evidence of a tacit admission on his part, prior to the bringing of such action, prejudicially affecting the amount of damages to which she was entitled, was incompetent, in the absence of proof that he was her agent.

2. Though the fact that an insulting proposal by the conductor of a railway train to a female passenger was provoked by an immodest remark by her to him did not justify such conduct on his part, it might be considered by the jury in determining the amount of plaintiff's damages, in an action against the railway company for such wrongful act of the conductor.

3. A new trial having been granted on plaintiff's appeal, on exceptions applying to the verdict on the issue as to the quantum of damages, defendant not having appealed, such new trial should be confined to such issue.

Appeal from superior court Guilford county; Robinson, Judge.

Action by John W. Strother and Minnie L. Strother, his wife, on behalf of the latter, against the Aberdeen & Asheboro Railroad Company. From a judgment on a verdict for plaintiffs, they appeal. Reversed.

J. T. Morehead, for appellants.

Douglass & Simms and Shaw & Scales, for appellee.

CLARK, J. This action was brought by the wife for a tort—an insulting proposition made to her by the conductor of the defendant corporation, while a passenger on its train. The sufficiency of the cause of action is not controverted, for the defendant does not appeal, and, besides, it is amply sustained by Daniel v. Railroad Co., 117 N. C. 592, 23 S. E. 327, especially authorities cited at page 608, 117 N. C, and page 329, 23 S. E., and Williams v. Gill, 122 N. C. 967, 29 S. E. 879.

The plaintiff appeals for errors alleged as to the second issue, —the quantum of damages. The first exception is that the court admitted evidence, over the plaintiff's objection, of admissions or quasi admissions from the silence of the husband. The husband was not required to be made a party by Code, § 178. Shuler v. Millsaps, 71 N. C. 297. He has no interest or share in the recovery (Const, art 10, § 6), and is only a formal party, and his prior admissions are not thereby made competent against the real party in interest. 2 Tayl. Ev. §§ 741, 742; 1 Greenl. Ev. 173. It is true that the husband, when Joined as a necessary party, is pro hac vice agent of his wife, and she Is bound by the acts of counsel selected by him, in the absence of collusion (Vick v. Pope, 81 N. C. 22); and therefore his admissions after action brought would be evidence against her; but this is on the ground of agency, and not of his being a party to the record, and hence his admissions made, as in this case, before action brought, being before the agency began, are not admissible (Towles v. Fisher, 77 N. C. 437). There are many cases holding that the admission of irrelevant or even "incompetent evidence of slight importance is not ground for new trial, unless it appear that the appellant has suffered prejudice by its admission." Glover v. Flowers, 101 N. C. 134, 7 S. E. 579; Patterson v. Wilson, 101-N. C. 594, 8 S. E. 341; State v. Shoemaker, 101 N. C. 690, 8 S. E. 332. But here the evidence erroneously admitted was prejudicial, being an offer of the conductor to pay $20, and the failure of the husband to promptly and in-dignantly reject it. All this was before suit brought, when in no sense was the husband (in the absence of evidence to that effect) the agent of the wife; and the inference sought to be drawn is his quasi admission that the sum offered was not grossly inadequate. This evidence was not...