Frazier v. Glasgow , 24 N.C. App. 641 ( 1975 )

211 S.E.2d 852 (1975) 24 N.C. App. 641

Marion Gilbert FRAZIER
v.
Raeford GLASGOW and Howard Richardson.

No. 7419SC893.

Court of Appeals of North Carolina.

February 19, 1975. Certiorari Denied April 2, 1975.

Ottway Burton, Asheboro, for plaintiff-appellant.

Smith & Casper by Archie L. Smith, Asheboro, for defendant-appellee, Glasgow.

Certiorari Denied by Supreme Court April 2, 1975.

HEDRICK, Judge.

Plaintiff contends the trial court erred in "refusing to charge the jury in regard to punitive damages." The record reveals that the plaintiff formulated and tendered to the trial judge the three issues which were submitted to the jury. The third issue clearly refers solely to actual damages. After the judge had completed his instructions to the jury, plaintiff's counsel requested the court to charge the jury "on the element of punitive damages in considering the Third Issue." [Emphasis ours.]

The plaintiff never asked the trial court, either orally or in writing, to submit the issue of punitive damages. Rather, he requested the judge to instruct the jury to consider punitive damages along with the issue of actual damages. Since the approved practice in North Carolina is to submit to the jury separate issues of punitive and compensatory damages, Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956); Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769 (1920), we are of the opinion that the trial judge properly refused plaintiff's request. Assuming, arguendo, the plaintiff's evidence warranted the submission of an issue of punitive damages in this case, we are of the opinion that plaintiff waived his right to have this issue submitted when he tendered to the court the three issues which were submitted and failed to request the submission of an issue of punitive damages. Baker v. Construction Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); Benson v. Insurance Co., 23 N.C.App. 481, 209 S.E.2d 362 (1974); Yandle v. Yandle, 17 N.C.App. 294, 193 S.E.2d 768 (1973); Brant v. Compton, 16 N.C.App. 184, 191 S.E.2d 383 (1972). See also, G.S. § 1A-1, Rule 49(b) and (c), Rules of Civil Procedure.

Plaintiff also contends the trial court erred in instructing the jury that provocation by the plaintiff could be considered in mitigation of damages. It has long been held that although provocation is not a defense to an action for civil assault, provocation can be considered in mitigation of plaintiff's damages. Lewis v. Fountain, 168 N.C. 277, 84 S.E. 278 (1915). We are bound by this well-settled rule.

At 7:15 p. m. one of the jurors, Mrs. Dorothy K. Dills, came to the door of the jury room and stated "that she had a three year old and two year old and she just had to see about her family; and that they were all crossed up". Plaintiff's counsel thereupon made a motion "that we recess and let the jury come back here because I don't think they can deliberate properly at this time." The denial of this motion is the basis of plaintiff's seventeenth exception and fifth assignment of error.

In the absence of a controlling statutory provision or recognized rule of procedure, the conduct of a trial rests in the discretion of the trial court. Shute v. Fisher, 270 N.C. 247, 154 S.E.2d 75 (1967); 7 Strong, N.C. Index 2d, Trial, § 5. Immediately after the statement by the juror and the denial of plaintiff's motion, the trial judge asked the jury to return to the courtroom. The judge was informed that the jury was making progress toward a verdict and that it wanted to continue to deliberate that night. The trial judge then ordered a forty-minute dinner recess. Plaintiff has failed to show by these circumstances that the trial judge abused his discretion.

Finally, based on four exceptions duly noted in the record, plaintiff contends the trial judge "express[ed] his opinion as to the sufficiency of proof in the plaintiff's evidence", in violation of G.S. § 1A-1, Rule 51(a), Rules of Civil Procedure. Each of these exceptions relates to a statement by the judge in his charge as to the contentions of the parties. In our opinion, the charge of the court is free from prejudicial error.

In the trial we find no prejudicial error.

No error.

MORRIS and PARKER, JJ., concur.