McRae v. Lilly, 23 N.C. 118, 1 Ired. 118 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 118, 1 Ired. 118

DUNCAN McRAE, Junior, vs. HENRY LILLY.

The Supreme Court cannot reverse a judgment of the Superior Court because of the alleged finding of excessive damages by the jury, or of the refusal of the Judge to set aside that finding — that not being a question of law, but of discretion.

Where the Judge, after reciting all the testimony relating to a material enquiry of fact in the cause, asked the-jury if they found in this testimony, or could lay their fingers on any part of it, shewing the fact, the question, unless proposed in such a tone and manner as to manifest the clear conviction of the enquirer ho wit ought to be answered, which will not be intended, is not an expression of opinion on the facts to the jury, but only very properly directs their attention to á material enquiry of fact.

In an action for seduction, the defendant cannot prove that his general character is that of a modest and retiring man — the general rule, to which this forms no exception, being, that unless the character of the party be put directly in issue by the nature-of the proceeding, evidence of his character is not admissible.

This was ail action of trespass on the case, brought to recover of the defendant damages for the seduction of the plaintiff’s daughter.

Upon the trial, at Cabarrus, on the last circuit, before his honor Judge Settle, the plaintiff introduced as a witness his daughter, Regina, who testified that she was seduced by the defendant;, and that, at the time of her seduction, she was living with her father, performing the usual and customary duties of a child in his family. The defendant then introduced several witnesses, with a view to shew that the plaintiff consented to, or connived at, the prostitution of his daughter; or that he was guilty of such gross negligence, in the care of her person, and her moral instruction, as amounted to such connivance; to rebut which testimony the plaintiff also introduced several witnesses. ' The defendant then offered to prove that he was a man of good character, and of a modest and retiring disposition; which was objected to by the plaintiff, and rejected by the court.

His Honor instructed the jury that if they believed the testimony of his daughter, Regina, the plaintiff was entitled to recover; but if they could collect from the whole of the evideuce, that the plaintiff consented to, or connived at, the prostitution of his daughter, he could not recover; or if he were guilty of gross negligence in the care of her person, or her moral instruction, that might be considered by them as connivance, and would destroy his right of action. His Hon- or recited the testimony, and asked the jury “ if they found any, or could lay their fingers on any, portion of it, which satisfied them that the plaintiff consented to, or connived at, the prostitution of his daughter, or was guilty of such gross negligence as amounted to a connivance.” The jury returned a verdict for the plaintiff, and assessed his damages to $ 1,600. The defendant moved for a new trial:

1st. On the ground of excessive damages.

2nd. For the reason that the court expressed an opinion on the facts of the case.

3rd. Because the court rejected the testimony offered by the defendant, to shew his good character, and that he was a modest and retiring man.

His Honor overruled the motion for a new trial, and gave judgment for the plaintiff, from which the defendant appealed.

Barringer for the plaintiff.

Gaston, Judge.

It is exceedingly clear that we cannot

reverse the judgment below, because of the alleged finding of excessive damages by the jury, or of the refusal of the Judge to set aside that finding. Whether the damages be excessive or not, we have not the means of examining, because “ between this Court and the evidence there is an impenetrable wall;” (see Bank of Newbern vs. Pugh, 2 Hawks Rep. 392,) and if we had the means of examination, we have no right to determine, because this is not a question of law, but of discretion.

We cannot award a new trial because we think the Judge ought to have granted one. Our authority to reverse the judgment and award a new venire, is only because of some error of the court which infects the verdict.

' Two of such errors are alleged. It is said that the Judge expressed an opinion to the jury on the facts of the case. In our opinion, this objection is not sustained. The only part his Honor’s charge which can be pressed into the support °f this objection, is that wherein, after having stated, as a principle of law, that if the plaintiff consented to, or eonnived at, the prostitution of his daughter, or was guilty of such gross negligence in the custody and education of his daughter as was equivalent to assent to her prostitution, he was not entitled to recover any damages; and, after reciting all the testimony, his Honor asked the jury if they found in this testimony, or could lay their fingers on any part of it, shewing that the plaintiff had so consented or connived, or been guilty of such gross neglect. Now, it is certain that this question might, have been proposed in such a tone and manner as to manifest the clear conviction of-the enquirer how it ought to be answered — -but we cannot intend any circumstances of this sort; and without some peculiarity of tone or manner, intimating the opinion of the speaker, and influencing, or tending to influence, the judgment of those addressed, the question submitted very properly directed the attention of the jury to a material enquiry of fact.

It is also insisted that the Judge erred in rejecting the testimony offered by the defendant to shew that his general character was that of a modest and retiring man. We are satisfied that there was no error in rejecting the testimony proposed. In civil suits, the general rule is, that unless the character of the party be put directly in issue, by the nature of the proceeding, evidence of his character is not admissible. And no reason is seen why, in this case, there should be an exception to the general rule. The judgment is affirmed.

Per Curiam. Judgment affirmed.