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But the foregoing cases cannot be regarded as opposed to Randall v. Evening News Asso. (Mich.) supra, as it appears in most of them that the evidence was admitted under the theory that it was competent as bearing on punitive damages, which rule does not obtain in Michigan, and none of the cases consider the point involved in the Randall Case.

The plaintiff in Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 12 A.L.R. 1007, 184 Pac. 672 (a libel suit), was permitted, apparently without an objection as to the competency being raised, to testify that the defendant corporation's property was worth about $2,000,000, as bearing on damages. A judgment upon an award of $30,000 punitive damages upon a predicate of $7,000 actual damages was upheld by the court, which did not consider the question of the competency of the evidence.

f. Miscellaneous matters. While the rule that evidence material to a cause is not inadmissible because objectionable on some ground other than that for which admitted is quite generally applied, one of the principal objections which have been made to the line of authority holding evidence of defendant's circumstances competent as bearing on compensatory damages is that, if the jury be shown that the defendant is a man of wealth, knowledge of the fact may prejudice the rights of the defendant by misleading the jury to believe they must answer the question, what can the defendant pay, rather than what amount of money will compensate the plaintiff. This phase of the problem has been quite generally recognized, and in nearly all the cases the point is made that the trial court should carefully instruct the jury as to the purpose for which the knowledge of the pecuniary circumstances of the defendant can be legitimately used. As to the precaution a trial court should exercise in permitting a jury to consider the wealth of a defendant as bearing on the compensatory damages to be given, an instruction that the jury should consider the pecuniary circumstances of the defendant,

but "in this connection you are instructed that it is proper for you to take into consideration the question as to whether or not it is necessarily true that a man possessed of property has, from that fact alone, the confidence and respect of the community in which he lives," was approved in Mills v. Flynn (1912) 157 Iowa, 477, 137 N. W. 1082. The charge as given, if followed, would seem to meet the principal ground of attack upon this line of authority, i. e., that wealth by itself does not necessarily give its possessor influence or his word credence in his community.

In the absence of evidence touching on the financial circumstances of the defendant, the trial court should not instruct the jury that it may consider his wealth in arriving at a verdict. Beeson v. H. W. Gossard Co. (1912) 167 Ill. App. 561; Bailey v. Bailey (1895) 94 Iowa, 606, 63 N. W. 341. The court in Bailey v. Bailey, while admitting that the evidence is admissible on behalf of the plaintiff in slander suits, held that in an action containing counts for slander and alienation of affections, an instruction upon the damages, relative to the latter count, that the jury might consider the rank and condition of the parties, was irregular, as the condition in life of defendant had no bearing on the amount of damages recoverable; the instruction was also said to be erroneous in that there was no evidence as to the financial condition of any of the parties. But it is not reversible error to charge a jury that they may consider "the pecuniary ability of the defendant to respond," where given as a mere abstract proposition having no bearing on the case, and where it does not appear that the defendant was prejudiced thereby. Alpin v. Morton (1871) 21 Ohio St. 536. And where it may be seen in the record that the defendant was a man of large property, and it appears that there might have been other evidence than that contained in the record which warranted the court in giving a charge as to the proper consideration of the defendant's wealth,-the record in

the case not purporting to contain all the evidence,—such an instruction is not tenable as a ground for reversal. Botsford v. Chase (1896) 108 Mich. 432, 66 N. W. 325. It was also held in the Botsford Case that remarks of the plaintiff's counsel as to the wealth of the defendant, which were not excepted to upon trial, did not aid the reversal sought, the circumstances which called forth the remarks not being disclosed to the appellate court.

A charge containing instructions substantially as follows was approved in Harman v. Cundiff (1886) 82 Va. 239: If defendant was actuated by malice the jury may give exemplary damages, and "in ascertaining the damages, they shall consider [the 'standing' of the parties], and wealth of the defendant is only to be considered so far as it tends to show the defendant's rank and influence in society, but not as showing his ability to pay."

Where evidence is received as to the financial condition of one of several joint defendants, and the court later instructs the jury that it cannot assess punitory damages against that defendant, and must disregard all evidence as to his financial condition, the admission does not constitute reversible error if it appears that the damages assessed against such defendant as compensation for the defamation are modest in view of the character of the defamation; hence, that the defendant was not prejudiced by the evidence. Gagen v. Dawley (1915) 162 Wis. 152, 155 N. W. 930.

The cases admitting evidence of the wealth of the defendant to show the extent of the injury by reason of the wealth should, it seems clear, confine the inquiry to a time reasonably close. to the time when the words were uttered. Geringer v. Novak (1904) 117 Ill. App. 167; Rea v. Harrington (1885) 58 Vt. 187, 56 Am. Rep. 561, 2 Atl. 475; Palmer v. Haskins (1858) 28 Barb. (N. Y.) 93; Steen v. Friend (1900) 11 Ohio C. C. D. 235, 20 Ohio C. C. 459. The reason for this is obvious; the words of a man known in the community where he published

a defamation to be in straitened circumstances at the time he made the defamatory statement cannot be said to carry any weight because of his former or later affiuence. But where the evidence is admitted as bearing on punitive damages, the inquiry as to the financial condition of the defendant should be directed to his ability to respond at the time of trial.

A practical problem is, of necessity, met during trial in those jurisdictions where evidence of defendant's financial condition is held admissible only in cases where punitive damages may be recovered. The question of actual malice, upon which depends an award of punitive damages, must in most cases be determined by the jury after all the evidence is in, and to leave the "twelve good and lawful, but not overerudite, men" in possession of information which they can use for one purpose, is, at least, liable to be confusing. Not to allow any such evidence unless it appears that punitive damages can be awarded, and careful instructions, seem to be the only methods of avoiding such confusion before verdict, and an exercise of the power to set aside the award, if it appears excessive, because the information has been improperly used, can cure any misuse of the information. In Dowie v. Priddle (1905) 216 Ill. 533, 75 N. E. 243, 3 Ann. Cas. 526, it was contended that, since the case was not one in which punitive damages could be allowed, it was error to receive evidence of defendant's wealth, which fact had been admitted on trial; but the court held against the contention, saying that whether exemplary damages were to be awarded was a question for the jury, and, "in case of slander, evidence that the defendant is wealthy is admissible."

An instruction that in awarding compensatory damages for a defamation the jury may consider "the . condition of the parties" is not erroneous as authorizing the jury to consider the wealth of the defendant, the natural and legitimate use of the word "condition" being the social standing, not the pecuniary ability, of a person. Buckstaff V. Hicks

(1896) 94 Wis. 34, 59 Am. St. Rep. 853, 68 N. W. 403.

It is said in the opinion of Breese, J., in Storey v. Early (1877) 86 Ill. 461, that the jury may not, in measuring damages for a libel, consider the wealth of a defendant who, while owning the paper containing the libel, had nothing to do personally with the libel published. The position is founded on the proposition that the defendant's personal wealth gave no greater circulation to the libel, nor carried any greater weight, than had he been a poor man. The rule stated was limited to the case wherein only compensatory damages are recoverable. While the opinion on the particular matter under consideration was not sanctioned by a majority of the court, and the decision of the case, as pointed out by Scott, J., dissenting, turned upon another matter, the opinion seems to comport with reason. A poor man may own a paper with a wide circulation, which has the confidence of the public, and, on the converse, it is well known that a rich man may own a paper with a wide circulation, which has no credence given any item appearing in it.

While irregular in order, it is not error for a plaintiff to be permitted to cross-examine the defendant as to his financial condition after the plaintiff has rested his case without offering evidence in chief upon the subject. Steen v. Friend (Ohio) supra.

Evidence of the pecuniary circumstances of the defendant appearing in the record of a case on appeal seems to have been a thing to which courts have frequently looked in determining whether verdicts, alleged to be excessive, were so. Gaines v. Gaines (1902) 109 III. App. 226; Reeves v. Roth (1912) 179 Ill. App. 95; Mercy v. Talbot (1914) 189 III. App. 1; Ross v. Ross (1844) 5 B. Mon. (Ky.) 20; Bodwell v. Osgood (1825) 20 Mass. 379, 15 Am. Dec. 228; Unterberger v. Scharff (1892) 51 Mo. App. 102; Williamson v. Eckhoff (1914) 185 Mo. App. 234, 170 S. W. 322; Hickman v. Nelson (1919) Mo. App. —, 211 S. W. 131. And see Cook v. Globe

Printing Co. (1910) 227 Mo. 471, 127 S. W. 332.

The Illinois courts admit evidence of the pecuniary circumstances of the defendant in defamatory actions as bearing on punitive or vindictive damages, and in cases on appeal, in which the judgment rendered is claimed to be excessive, the record is scanned for such evidence. See cases supra. In determining whether a verdict is excessive in a case in which punitive damages are recoverable, an appellate court will regard the defendant as having been known to be penniless unless some evidence was given as to his financial resources. Mercy v. Talbot (1914) 189 Ill. App. 1, supra.

In holding a verdict not excessive, the Kentucky court of appeals said in Ross v. Ross (1844) 5 B. Mon. (Ky.) 20, that, "there being no evidence of the pecuniary circumstances of the parties, we cannot admit that there is in the mere amount of the verdict, as compared with the character of the slander, or any circumstances appearing in the case, any ground to authorize the conclusion that the jury acted under the influence of corruption, or prejudice, or inordinate passion," and held that its verdict could, therefore, not be impeached as excessive.

The defendant in a defamatory action having deliberately charged the plaintiff with the crime of perjury, and repeated it several times, and the evidence showing that the defendant was worth at least $100,000, and no attempt being made to justify the accusation, a verdict of $500 will not be disturbed. Gaines v. Gaines (Ill.) supra. The case was said by the courts to be one in which punitive damages alone could be considered by the jury.

In Reeves v. Roth (1912) 179 III. App. 95, an action for slander, the court said that as there "was no proof of the wealth of the appellant [defendant], nor was there any proof of special damages to the appellee," a judgment for $2,000 was excessive, but would be affirmed on condition of a $1,000 remittitur.

The defendant in an action for charging the plaintiff with being at thief being shown to be worth at least $75,000, an appellate court cannot say as a matter of law that a verdict of $1,500 for direct injuries resulting from the charge showed prejudice upon its face. Unterberger v. Scharff (1892) 51 Mo. App. 102.

The converse situation of that presented in the cases just considered is to be found in the Louisiana case of Fatjo v. Seidel (1903) 109 La. 699, 33 So. 737, where the supreme court noted that the defendant was "a man

of considerable means," and increased a judgment for $50 to $500.

In conclusion it may be said that while knowledge of the financial standing of the defendant may, in some cases, lead the jury into an unwarranted assessment of damages, it does not seem that an occasional misuse of the knowledge, with the checks indicated above, should render evidence going to show his financial standing incompetent. Evidence relevant to a cause for one purpose should not generally be excluded because the jury may erroneously use it for another.

J. P. T.

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Electricity, § 12-sufficiency injury by electricity.

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1. Evidence that one attempting to use an electric iron in the usual way received a severe shock, indicating an excessive voltage on the transmission line, is sufficient to take to the jury the question of the negligence of the one engaged in distributing the electricity. [See note on this question beginning on page 31.] Trial, § 247 motion for nonsuit consideration of evidence.

2. Upon a motion as of nonsuit upon the evidence, the evidence must be considered in the light most favorable to plaintiff.

Electricity, § 10 - degree of care

necessary.

3. A corporation engaged in producing and selling electricity for domestic use must exercise the highest degree of care in its distribution.

[See 9 R. C. L. 1200; 2 R. C. L. Supp. 942; 4 R. C. L. Supp. 641.]

APPEAL by plaintiff from a judgment of the Superior Court for Mecklenburg County (Harding, J.) granting nonsuit of an action brought to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant utilities company. Reversed.

Statement by Clarkson, J.:

The plaintiff conceded in this court that on the evidence adduced in the court below there was no error in the judgment of nonsuit against George W. Pryor and Virginia-Carolina Amusement Company. The only question that will be considered is, Is there any suf

ficient evidence, as shown from the record, to go to the jury, as to the liability of the Southern Public Utilities Company.

The plaintiff contends that the defendant Virginia-Carolina Amusement Company was a corporation operating theaters and places of amusement in Virginia and North

Carolina, and George W. Pryor was one of the owners and managers; that they were operating what is known as the Piedmont Theater in the city of Charlotte. The plaintiff was an actress, and engaged as a performer, and it was her duty to press her aprons used as a part of her costume to be worn during the performance, and to press wardrobes. She was furnished with an electric iron for this purpose, and was injured as hereinafter stated.

The plaintiff alleges in the complaint: "That the defendant Southern Public Utilities Company was negligent, which negligence was the proximate cause of the injury to the plaintiff, in that it failed to properly inspect its said system of wiring, appurtenances, and equipment whereby the current was transmitted to the said theater, as aforesaid, and in permitting the said wiring, appurtenances, and equipment to become in such defective condition, and such condition that it failed to perform the function for which it was installed in controlling and reducing the current and the voltage, quantity, or power of said current, which was transmitted to the said building in such low voltage, quantity, or power as to be proper and safe for uses in said building, and in negligently permitting the said current to be transmitted to said Piedmont Theater and its wiring system and equipment in such high voltage, quantity, and power as to make it unsafe for persons to use and handle the equipment of said theater in the manner in which they were accustomed ordinarily to handle the same, and this said negligence produced the injury to the plaintiff in that the said current of electricity was transmitted to the iron which she was handling, as aforesaid, in a dangerous, unsafe, and unusual quantity, voltage, and power."

The Southern Public Utilities Company denies these allegations.

From the judgment of nonsuit

rendered against plaintiff in the court below, she assigns error, and appeals to the supreme court.

Mr. J. F. Flowers, for appellant: The application of the doctrine of res ipsa loquitur permits the plaintiff to offer the "fact of the accident," which is sucient to take the case to the jury and to "require" the trial court to submit the case to the jury for determination.

Turner v. Southern Power Co. 154 N. C. 131, 32 L.R.A. (N.S.) 848, 69 S. E. 767; Morrisett v. Elizabeth City Cotton Mills, 151 N. C. 34, 65 S. E. 514; Shaw v. North Carolina Pub. Serv. Corp. 168 N. C. 611, 84 S. E. 1010; Ridge v. Norfolk Southern R. Co. 167 N. C. 518, L.R.A.1917E, 215, 83 S. E. 762; Page v. Camp Mfg. Co. 180 N. C. 330, 104 S. E. 667; Modlin v. Simmons, 183 N. C. 65, 110 S. E. 661; White v. Hines, 182 N. C. 275, 109 S. E. 31; Dail v. Taylor, 151 N. C. 284, 28 L.R.A. (N.S.) 949, 66 S. E. 135; Fitzgerald v. Southern R. Co. 141 N. C. 530, 6 L.R.A. (N.S.) 337, 54 S. E. 391; Ross v. Double Shoals Cotton Mills, 140 N. C. 115, 1 L.R.A. (N.S.) 298, 52 S. E. 121; Womble v. Merchants Grocery Co. 135 N. C. 474, 47 S. E. 493.

The utmost degree of care is required of companies chartered to furnish electric current in the construction, inspection, and repair of their appliances, poles and wires.

Horne v. Consolidated R. Light & P. Co. 144 N. C. 380, 57 S. E. 19; Haynes v. Raleigh Gas Co. 114 N. C. 203, 26 L.R.A. 810, 41 Am. St. Rep. 786, 19 S. E. 344; Shaw v. North Carolina Pub. Serv. Corp. 168 N. C. 611, 84 S. E. 1010.

An electric company, before sending its current for lighting purposes through apparatus installed in a building by other parties, is bound on its own responsibility to make reasonable inspection of the apparatus to see

whether it is fit for use.

Houston v. Durham Traction Co. 155 N. C. 9, 71 S. E. 21; Haynes v. Raleigh Gas Co. 114 N. C. 203, 26 L.R.A. 810, 41 Am. St. Rep. 786, 19 S. E. 344; Mitchell v. Raleigh Electric Co. 129 N. C. 166, 55 L.R.A. 398, 85 Am. St. Rep. 735, 39 S. E. 801.

Messrs. Cook & Wyllie, W. S. O'B. Robinson, Jr., and R. S. Hutchinson for appellees.

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