*1 MсCoy. judgment by Tie is sustained dismissing action nonsuit authoritative decisions of distinguished this Court. This case cannot be are cases which such were made. These decisions decisions accord with regarded well-settled аnd must be general principles, authorities in this case. judgment
Affirmed.
PERRY HYATT v. W. L. McCOY.
(Filed December, 1927.) — — — — Damages 1. Verdict Reduction Consent Discretion Court Judgments and Error. —Statutes—Constitutional Daw — discretionary power of the trial to set аside the verdict of “inadequate” damages, for “excessive” or does not extend to his judgment accordingly, to reduce the verdict and render unless by party against S., done, assented to whose interest it has bеen C. IV, of N. Art. Constitution sec. and without this -consent the Supreme Court, appeal, on will direct that of the be entered to the verdict. S. Husband of Wife’s Wife —Seduction—Alienation Affection —Evi- dence. by brought In an action for seduction competent and the alienation Ms nection with other it is wife’s to show in con- probative trial, evidence introduced at the either of corroboration or the means which the wife’s affec- alienated, tions were defendant’s efforts to have the the State, repeated expressions wife leave the of his affection for Injuries. 3. Same —Personal brought husband for seduction of affections, the alienation from him of her it is to show that personal injury the husband was from a received while employment, defendant’s which was made use of the latter for purpose, allegations of his to that еffect in the complaint should not be on defendant’s motion. Subsequent Relations Husband and Wife —Intercourse. Same — plaintiff, Where the evidence tended show that the in an for the seduction his wife and the alienаtion personal injury him of her had received a while in service injury and that the made defendant use of this pursuit purpose, injury evidence that since the not had excluded, properly intercourse with his the issue as to whether the defendant had had immoral relations with her. FALL TERM, G] *2 Appeal Jury From and Error —Evidence Withdrawn 5.. —Instructions— Objections Exceptions. incompetent evidence, ordered Tbe admission of or when court, especially error, does not constitute reversible particularly when the is not to influenced instructed consider by it. 6. Husband and Wife —Seduction—Alienation of Wife’s Affection —Evi- dence —Declarations. damagеs for the alienation of testimony by etc., his wife’s had wife’s issue as to his of conversations question corroborating is on the his humiliation, bearing upon to show in damages, but not as to the criminal conversation betwеen plaintiff’s the defendant and the wife. Appeal Instructions—Excerpts Charge. From Error — Excerpts judge’s instructions to not be for held parts if construed connection with related of the entire no error has bеen committed. Blade, Emergency at Judge, November Special Term, . 1926, of MacoN.
The suit plaintiff brought for damages seduction his wife and the alienation of her affections. The returned the verdict: following
1. Did the W. L. McCoy, alienate the affections of plain- tiff’s as alleged in complaint? Answer: Yes.
2. Did the defendant, W. L. McCoy, have immoral relations with the alleged in the complaint? Answer: Yes. 3. What amount of actual if damages, any, is the plaintiff entitled recover ? Answer: $10,000.
4. What amount of punitive if damages, is the entitled any, to recover ? Answer: $2,000.
Judgment in favor of plaintiff for $10,000. Both the plaintiff for appealed On re- assigned. plaintiff’s аppeal versed; on defendant’s no error. appeal Horn & Poindexter and Bryson Bryson & for &
Moody Moody, McKinley Edivarcls and U. G. Robertson de- for fendant. Appeal.
Plaintiff's When the plaintiff moved the verdict judgment upon trial “in the judge exercise his discretion” the sum reduced awarded as actual answer to the damages third issue from COURT. IN THE SUPREME ques- exception presents and tbe $8,000, plaintiff excepted. of discretion
tion wbetber tbe order was mаtter it involved and therefore reviewable in case of abuse or wbetber IY, Article meaning matter of law or inference witbin tbe legal section of tbe Constitution. inmay is wbo tries tbe cause provided by set minutеs, bis
bis discretion entertain a
to be made on
motion,
for excessive
aside a verdict and
a new
grant
bas been said “that
there
no reason which
(C. S., 591) ; and it
dam
excessive
be advanced in favor of
asidе verdicts because of
setting
damages.”
ages
setting
inadequacy
which does not
aside
apply
Collins,
in a number
Benton v.
83. So it bas been held
set
a new trial for excessive
grant
cases tbat to
aside
*3
tbe рre
as a
tbe irreviewable
inadequate damages is,
rule,
right
R., 125
R., 122
R.
C., 1008;
Benton v. R.
N.
Burns v.
siding judge.
Co.,
Little,
304;
N.
N.
v.
C., 304;
C.,
Phillips
Telegraph
v.
Gray
R.,
Yount,
R.
130 N.
138 N.
v.
513;
C., 337; Boney
v.
C.,
Abernethy
R.,
Observer,
v.
150 N.
Decker v. R.
C., 248;
C., 540;
Billings
26.
this
But
Court bas been
in
tbat
tbe
equally positive
bolding
cannot
reform, or rеduce tbe amount of a verdict
amend,
thereon as
tbe
give judgment
reformed or amended without
consent
tbe
Whit
tbe
whose favor
verdict was returned. Shields v.
party
aker,
Wellborn,
In compensatory damages $8,000 dis- regard of tbe to the diminution plaintiff’s objection giving judg- ment on tbe for tbe diminished tbe court committed an error which is entitled to have corrected. To this extent should be rеformed.
Reversed.
DEFENDANT’S APPEAL. assignments sixty- Of tbe one hundred and of error sixty brief must aban- are left out of tbe be treated as eight appellant’s O., doned. 192 N. Rule 28. have examined those which have We not been abandoned and find it as аs it is unnecessary inexpedient to tbe same separately. Many them, relating subject- discuss them Y63 FALL TERM, 192Y. C.] subdi- matter, may be considered Those the first together. group, vided as (a), (b), (c) and brief have reference (d) aрpellant’s which was admitted either of corroboration or of the means which showing the defendant alienated the affections efforts to have including leave the State, repeated exprеssions or the see no reason plaintiff. We for the of this rejection evidence. It was to the certainly pertinent first issue; and in our when considered in connection with the opinion, first issues, two the court’s refusаl to strike out the whole of fifth and sixth paragraphs was free These complaint from error. set forth paragraphs condition of the resulting from personal injury received while in the defendant’s service, plaintiff’s evidence made use of The court purpose. withdrew from the jury all evidence show that since the plaintiff’s injury there been no intercourse between him and his cautioned expressly not evidencе should not be but that considered, Hyatt should be considered so far it tended to establish the matters involved in the first but not in the second issue.
The admission of improper or incompetent evidence with which is drawn from the and stricken out will not constitute reversible especially when the particularly instructed not to consider it or to be influenced it in S. v. May, making up the verdict. J., Ruffin, G. “If remarked: may it received,
afterwards be pronоunced incompetent, and the
instructed not to
consider it”; and the
principle embodied
this concise
has
statement
been recognized and enforced without material
McAllister
variation.
McAllister,
Jаmes,
and collusion, and Have enacted in all prohibiting woman cаses of kind testify to acts of adultery. Upon second issue the court that charges the wife of the plaintiff not a competent witness for the plaintiff to show criminal intercourse between herself and the dеfendant, and the upon passing issue not consider her such testimony for purpose.” Other exceptions under subdivision taken to the (d), admission the plaintiff’s conversations between himself after his discovery her condition, seem to be based on that the theory the declarations of the wife concerning relations defendant were incompetent. McCall v. Galloway, it is said that the excluded testimony was intended evidеnce the put declarations of the wife against her husband. But not so in the present case; the case cited is an therefore not the appellant’s position. was not admitted as evidence fоr or against account of criminal conversation between his wife defendant; and the it was corroborate Mrs. part to show the humiliation and suffering endured consequence of the defendant’s wrong.
The appellant’s motion to dismiss
as in case of nonsuit was
properly denied. We do not assent to the
that
proposition
there was no
evidence that the wife’s affections had been alienated or,
excluding
Hyatt,
there was no evidence to
justify
answer to the second issue. The evidence was clearly sufficient to sus
tain the
Mitchell,
verdict. Grant v.
The appellant has assigned for error several excerpts from the in- structions given the jury. We have carefully examined them one one in their relation to the whole have not any discovered entitling appellant to a new triаl. To dwell or to out- line these instructions would unduly .prolong opinion and would serve no useful purpose. Those not restricted to a recital of con- tentions embrace a statement of legal prinсiples which have frequently been approved.
On defendant’s appeal we find no error. The plaintiff is entitled to a judgment for the full amount awarded by the both as jury, to com- and as pensatory punitive damages.
No error.