Reese v. . Clark ( 1934 )

On 18 July, 1932, the defendant was an employee of and was working at the plant of the Melrose Hosiery Mill, in High Point. There is evidence tending to show that the plaintiff left the mill where he was working and with a multitude of people went to the mill where the defendant was working, and climbed over the fence of the Melrose Hosiery Mill, and crawled upon the boiler and blew the whistle to get the hands to stop work and join him and others in a strike; and there is evidence further tending to show that the defendant, who was working about the engine and boiler room of the Melrose Hosiery Mill, in an effort to protect himself from the threatening and menacing attitude of the plaintiff, and those accompanying him, threw acid upon the plaintiff, thereby causing him some injury.

The issues submitted were as follows:

1. Did the plaintiff, without attaining a lawful permit make entry into the lands and tenements of the Melrose Hosiery Mill with strong hands and with a multitude of people in a forceful manner in violation of the laws of the State of North Carolina? (C.S., 4300.) Answer: ..........

2. Did the defendant assault the plaintiff? Answer: ..........

3. If so, was such assault wanton and malicious? Answer: ........

4. What compensatory damage, if any, is the plaintiff entitled to recover from the defendant? Answer: ..........

5. What punitive damage, if any, is the plaintiff entitled to recover from the defendant? Answer: .........

The jury answered the first issue Yes, and the second issue No, and left the third, fourth and fifth issues unanswered.

From judgment for the defendant, the plaintiff appealed to the Supreme Court, assigning errors. The plaintiff objected to the issues submitted, more particularly to the first. We think these issues clearly arise upon the pleadings in this case. Without objection the court omitted a statement or review of the evidence, but did in a clear and correct manner state the contentions of the parties and "declare and explain" the law arising on the evidence. The trial judge charged the jury as to the law of trespass and properly placed the burden of proof upon the defendant on the first issue and the jury answered in the affirmative, thereby finding that the plaintiff was a trespasser. The court upon the second issue explained the law of assault, correctly charging as to the right of the defendant of self-defense as against trespassers; and carefully explained to the jury that if the defendant by throwing the acid used more force than appeared to him reasonably necessary, or for any other purpose than protecting himself, even if the plaintiff was a trespasser, the defendant would be guilty of an assault. The jury answered this issue in the negative.

The plaintiff in this case is in practically the same position as the prosecutor occupied in S. v. Goode, 130 N.C. 651, where the Court, on page 655, said: "Whether the force used by the defendant was excessive is matter for a jury. Indeed, if this evidence is to be believed, the prosecutor was a law-breaker, and is himself in jeopardy of the judgment for his violence and his defiant disregard of the rights of the defendant."

We think the plaintiff's prayer for special instructions are untenable. The exceptions to the charge are largely to the statement of the defendant's contentions and were not taken at the trial, and therefore cannot be considered here. Mfg. Co. v. Building Co., 177 N.C. 103. And aside from this we see no error in the exceptions.

The jury having answered the first and second issues in favor of the defendant, any discussion of the subsequent issues and charge relative thereto becomes unnecessary. The verdict and judgment will be upheld.

No error.