Billings v. Charlotte Observer
64 S.E. 435
N.C.
1909
Check Treatment
Hoke, J.,

аfter stating the case: We do not advert to the questions chiefly raised in the plaintiff’s'case on appeal, for the reason that, under numerous and well-considered decisions of this Court, the appeal must bе dismissed as having been prematurely taken. This position is well establishedj and the question has usually been raised оn an issue as to damages, the very case presented here. Rogerson v. Lumber Co., 136 N. C., 266; Benton v. Collins, 121 N. C., 66; Hilliard v. Oram, 106 N. C., 467; Hicks v. Gooch, 93 N. C., 112.

In Benton v. Collins, supra, Faircloth, C. J., delivering the opinion, said: “The apрeal is premature. He should have noted his exception and proceeded with the trial and brought thе whole case to this Court on final judgment. This course would not affect any substantial right. This question has been so often decided as to need only a reference to Hilliard v. Oram, 106 N. C., 467, and the numerous cases cited.”

In Hilliard v. Oram, supra, Clark, J., said:. “The appeal of the defendants is prеmature. They should have noted their exceptions, and after the trial is completed, ‍‌​‌‌‌‌​‌‌​‌‌​​‌‌​​​‌‌​‌​​‌​​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌‍by a finding upon the оther issue and á final judgment, an appeal will lie. The Court will not try causes by ‘piecemeal.’ ”

And to like, effect, Smith, C. J., in Hicks v. Gooch, supra, referred to the question as follows: “The general principle is that when a trial is entered upon it should embrace and dеtermine the whole subject-matter in controversy, so that a final *543 judgment may be entered, any errors committеd in its progress being open to revision and correction in one appeal, while the Court could not tolerate a succession of appeals upon separate ■and fragmentary parts. The ruling has been frequently since recognized and acted on. "We refer to but a few of them, the most recеnt: Commissioners v. Satchwell, 88 N. C., 1; Lutz v. Cline, 89 N. C., 186; Jones v. Call, ib., 188; Grant v. Reese, 90 N. C., 3; Arrington v. Arrington, 91 N. C., 301. The practice thus established, upon its intrinsic merits, and ‍‌​‌‌‌‌​‌‌​‌‌​​‌‌​​​‌‌​‌​​‌​​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌‍to avoid useless and prolonged litigation, mus.t be uphеld.”

The authorities with us are also to the effect that, unless some •question of law or legal inference is involved, the granting or refusing a new- trial upon all or any one of the issues rests in the sound discretion of the lower court; and where it appears that the question has been determined, in the exercise of this discretion, the action of the court thereon is not subject to review. Abernethy v. Yount, 138 N. C., 337; Benton v. Collins, 125 N. C., 94; Carson v. Dellinger, 90 N. C., 226; Moore v. Edmiston, 70 N. C., 481.

True,-as stated in Jarrett v. Trunk Co., 144 N. C., 302, and in Benton v. Collins, 125 N. C., 94, the. issues in a case may be so involved, the оne with the other, that the granting of a new trial on 'one issue and not the other might present a question of law оr legal inference, but no such case is presented on an issue as to damages.- That was the only question presented and decided in the Benton case, where Montgomery, J., for the Court, said: “There are conflicting decisions on this question in the cоurts of several of the States, but we believe that the conclusion arrived at by the English court, in the case quoted from, is the correct conclusion, and we will adopt it as the conclusion of this Court. Holding, then, as we do, that the Superior Courts of this State have the ‍‌​‌‌‌‌​‌‌​‌‌​​‌‌​​​‌‌​‌​​‌​​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌‍power to set aside verdicts for inadequacy of damаges, we logically conclude that such power is discretionary with them, and that it is not reviewable by us. The power to correct prejudiced and grossly unfair verdicts must be vested somewhere, and, in our judgment, it is best that such power be confined to the judges who preside over the trials. They are *544 presumed to be learned in the law, impartial in their judgments and upright in their conduct, and, with most rare exceptions, they have measured up to the standard of that presumption.”

And while approving the caution expressed by the Court in Jarrett’s case, supra, as to the careful use of this power in any class of cases, it is, as stаted, only in those where a matter of law or legal inference is presented that the exercise of the judge’s discretion can be reviewed. As said by Bynum, J., in Moore v. Edmiston, supra, “He is clothed with this power because of his learning and integrity, аnd of the superior knowledge which his presence at and participation in the trial gives him over any other forum. However great and responsible this, power, the law intends ‍‌​‌‌‌‌​‌‌​‌‌​​‌‌​​​‌‌​‌​​‌​​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌‍that the judge will exercise it to further the еnds of justice; and though doubtless it is occasionally abused, it would be difficult to fix upon, a safer tribunal for the exеrcise of this discretionary power, which must be lodged somewhere.”

The position of the plaintiff, that the рower to grant a new trial in the present case did not exist because the determination of the issue invоlved to some extent an award of punitive damages, is without merit. In numbers of cases expressions will be found to the effect “that the question and amount of punitive damages is for the jury, or always for the jury,” etc., but these еxpressions have reference to the established principle that the court can never direсt the award of punitive damages as a matter of law; but where an award of such damages is permissible оn the facts, the judge, shall lay down the law applicable, and it is for the jury to determine in all cases whether or not they shall be allowed, and also the amount; but it was never intended to withdraw issues of this character, and verdicts upon them, from the supervisory power of the courts. Accordingly, in one of the authorities cited and relied on by plaintiffs (Canfield v. Railroad, 59 Mo., 355), it was held that “The amount of punitive damages is always left with the jury, subject to be reviewed by the court, if excessive.”

This power of the court to supervise verdicts to the extent indicated is onе of .the most commendable ‍‌​‌‌‌‌​‌‌​‌‌​​‌‌​​​‌‌​‌​​‌​​​​‌​‌​‌‌‌‌​‌‌‌​​​​‌‌‍features of our system of trials by jury. It is on issues of the kind presented here that *545 its influenсe is chiefly desirable, and- when wisely and fearlessly exercised by a just and learned judge it is one of tbe surest safeguards to a true and righteous deliverance.

For the reasons indicated, ■ the appeal must be dismissed as having been prematurely taken, and it is so ordered.

Appeal Dismissed.