Reese v. Clark, 206 N.C. 718 (1934)

June 20, 1934 · Supreme Court of North Carolina

206 N.C. 718

D. R. REESE v. F. H. CLARK.

(Filed 20 June, 1934.)

1. Assault A c — Enrployee may use force appearing reasonably necessary in self-defense against striker trespassing upon property.

The evidence tended to show that plaintiff, with a multitude of people, went to the mill in which defendant was employed, climbed upon the boiler and blew the whistle to get the employees therein to join xjlaintiff and other employees of another mill in a strike, and that thereupon defendant threw acid upon plaintiff, resulting in the injury in suit. The trial court submitted issues of whether plaintiff was.a trespasser, placing the burden of proof thereon upon defendant, whether defendant assaulted plaintiff, whether the assault was malicious, and issues of compensatory and punitive damages, and instructed the jury that if defendant used more force than to him appeared reasonably necessary in self-defense ■ against plaintiff, even if he were a trespasser, defendant would be guilty of assault. Held, the issues arose upon the pleadings and evidence and an exception thereto is not sustained, and the instruction relating to self-defense was without error.

2. Appeal and Error E a: Trial E f—

Exceptions in the statement of the contentions of a party will not be considered on appeal when such exceptions were not taken at the trial.

S. Appeal and Error J g—

Where the answers of the jury to the first two issues determine the rights of the parties, discussion of the subsequent issues and the charge relative thereto becomes unnecessary.

Appeal by plaintiff from Sinlc, Jat October Term, 1933, of Guil-ford.

No error.

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

Tbe issues submitted were as follows:

1. Hid tbe plaintiff, without attaining a lawful permit make entry into tbe lands and tenements of tbe Melrose Hosiery Mill with strong bands and with a multitude of people in a forceful manner in violation of tbe laws of tbe State of North Carolina? (0. S., 4300.) Answer:

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

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

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

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

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

From judgment for tbe defendant, tbe plaintiff appealed to tbe Supreme Court, assigning errors.

Garland B. Daniel, 8. G. Daniel and King & King for appellant.

Gola!, McAnally & Gold, Frazier & Frazier and T. W. Albertson for appellee.

SohbNCK, J.

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.