187 S.E. 771 | N.C. | 1936
Civil action to recover damages for alleged willful and malicious assault. *499
Plaintiff's evidence tends to show that on 11 January, 1936, he was opening a road on his own land, under order of court, east of the dividing line between his land and the adjoining land of the defendant. "Mr. Knight came up and wanted it laid off so the whole road would be east of the line claimed by him before we agreed on the line."
An argument ensued, and when plaintiff's back was turned, the defendant grabbed him by the arm and plaintiff fell, his feet having become entangled in some wire fencing. Plaintiff got up and ran about seventy-five yards, when he was overtaken by the defendant, struck 20 or 25 times, knocked down, and his nose broken. Plaintiff testified: "I was doing nothing to Mr. Knight when he assaulted me. Made no fight at him at all. It all occurred on my land."
The defendant's version is slightly different. He first fancied some provocation, then said: "I chased him across the muddy field about 75 yards. Worthy fell and I struck him once and possibly twice, not more than twice. He was kicking and fighting at me. I hit him with my fist."
The jury awarded the plaintiff compensatory damages in the sum of $40.00. The court declined to submit an issue as to punitive damages (exception), and charged the jury that in no event would they award the plaintiff more than compensatory damages. Exception.
Plaintiff appeals, assigning errors. The doctrine of punitive damages occupies a rather anomalous position in our law.
In the first place, such damages are not recoverable as a matter of right. Hodges v. Hall,
Second: Punitive damages may not be awarded unless otherwise a cause of action exists and at least nominal damages are recoverable by the plaintiff. Saunders v. Gilbert,
Third: Both the awarding of punitive damages and the amount to be allowed, if any, rest in the sound discretion of the jury, Cobb v. R. R., *500
Primarily, then, the court is concerned with only two questions: (1) Whether there is any evidence to be submitted to the jury; and (2) whether the award is excessive. The balance is for the twelve. Tripp v. Tob. Co.,
The foregoing epitome of the law, as it obtains in this jurisdiction, may be gleaned from the following authorities: Lay v. Pub. Co.,
In the case at bar, there is evidence of an aggravated, criminal assault. This calls for an issue of punitive damages to be submitted to the jury. Saunders v. Gilbert, supra; Sowers v. Sowers,
New trial.