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But the foregoing cases cannot be but "in this connection you are inregarded as opposed to Randall v. structed that it is proper for you to Evening News Asso. (Mich.) supra, take into consideration the question as it appears in most of them that as to whether or not it is necessarily the evidence was admitted under the true that a man possessed of property theory that it was competent as bear- has, from that fact alone, the coning on punitive damages, which rule fidence and respect of the community does not obtain in Michigan, and none in which he lives," was approved in of the cases consider the point in- Mills v. Flynn (1912) 157 Iowa, 477, volved in the Randall Case.

137 N. W. 1082. The charge as given, The plaintiff in Scott v. Times-Mir- if followed, would seem to meet the ror Co. (1919) 181 Cal. 345, 12 A.L.R. principal ground of attack upon this 1007, 184 Pac. 672 (a libel suit), was line of authority, i. e., that wealth by permitted, apparently without an ob- itself does not necessarily give its jection as to the competency being possessor influence or his word creraised, to testify that the defendant dence in his community. corporation's property was worth In the absence of evidence touchabout $2,000,000, as bearing on dam- ing on the financial circumstances of ages. A judgment upon an award of the defendant, the trial court should $30,000 punitive damages upon a pred- not instruct the jury that it may conicate of $7,000 actual damages was sider his wealth in arriving at a verupheld by the court, which did not dict. Beeson v. H. W. Gossard Co. consider the question of the com- (1912) 167 Ill. App. 561; Bailey V. petency of the evidence.

Bailey (1895) 94 Iowa, 606, 63 N. W.

341. The court in Bailey v. Bailey, 1. Miscellaneous matters.

while admitting that the evidence is While the rule that evidence ma-,

admissible on behalf of the plaintiff terial to a cause is not inadmissible

in slander suits, held that in an acbecause objectionable on some ground

tion containing counts for slander other than that for which admitted is

and alienation of affections, an inquite generally applied, one of the

struction upon the damages, relative principal objections which have been

to the latter count, that the jury might made to the line of authority holding

consider the rank and condition of evidence of defendant's circumstances

the parties, was irregular, as the concompetent as bearing on compensatory

dition in life of defendant had no damages is that, if the jury be shown

bearing on the amount of damages rethat the defendant is a man of wealth,

coverable; the instruction was also knowledge of the fact may prejudice

said to be erroneous in that there was the rights of the defendant by mis

no evidence as to the financial conleading the jury to believe they must

dition of any of the parties. But it is answer the question, what can the

not reversible error to charge a jury defendant pay, rather than what

that they may consider “the pecuamount of money will compensate the plaintiff. This phase of the problem

niary ability of the defendant to re

spond," where given as a mere abhas been quite generally recognized, and in nearly all the cases the point

stract proposition having no bearing is made that the trial court should

on the case, and where it does not carefully instruct the jury as to the

appear that the defendant was prej

udiced thereby. Alpin Morton purpose for which the knowledge of the pecuniary circumstances of the (1871) 21 Ohio St. 536. And where defendant can be legitimately used. it may be seen in the record that the As to the precaution a trial court defendant was a man of large propshould exercise in permitting a jury erty, and it appears that there might to consider the wealth of a defendant have been other evidence than that as bearing on the compensatory dam- contained in the record which warages to be given, an instruction that ranted the court in giving a charge the jury should consider the pecu- as to the proper consideration of the niary circumstances of the defendant, defendant's wealth,--the record in

V.

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 Hicks

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(1896) 94 Wis. 34, 59 Am. St. Rep. Printing Co. (1910) 227 Mo. 471, 127 853, 68 N. W. 403.

S. W. 332. It is said in the opinion of Breese, The Illinois courts admit evidence J., in Storey v. Early (1877) 86 Ill. of the pecuniary circumstances of the 461, that the jury may not, in measur- defendant in defamatory actions as ing damages for a libel, consider the bearing on punitive or vindictive damwealth of a defendant who, while own- ages, and in cases on appeal, in which ing the paper containing the libel, the judgment rendered is claimed to had nothing to do personally with the be excessive, the record is scanned libel published. The position is for such evidence. See cases supra. founded on the proposition that the In determining whether a verdict is defendant's personal wealth gave no excessive in a case in which punitive greater circulation to the libel, nor damages are recoverable, an appellate carried any greater weight, than had court will regard the defendant as he been a poor man.

The rule stated having been known to be penniless was limited to the case wherein only unless some evidence was given as to compensatory damages are recover- his financial resources. Mercy v. able. While the opinion on the par- Talbot (1914) 189 Ill. App. 1, supra. ticular matter under consideration In holding a verdict not excessive, was not sanctioned by a majority of the Kentucky court of appeals said the court, and the decision of the in Ross V. Ross (1844) 5 B. Mon. case, as pointed out by Scott, J., dis- (Ky.) 20, that, “there being no evisenting, turned upon another matter, dence of the pecuniary circumstances the opinion seems to comport with of the parties, we cannot admit that reason. A poor man may own a paper there is in the mere amount of the with a wide circulation, which has verdict, as compared with the charthe confidence of the public, and, on acter of the slander, or any circumthe converse, it is well known that a stances appearing in the case, any rich man may own a paper with a ground to authorize the conclusion wide circulation, which has no cre- that the jury acted under the indence given any item appearing in it. fluence of corruption, or prejudice, or

While irregular in order, it is not inordinate passion," and held that its error for a plaintiff to be permitted verdict could, therefore, not be imto cross-examine the defendant as to peached as excessive. his financial condition after the plain- The defendant in a defamatory actiff has rested his case without offer- tion having deliberately charged the ing evidence in chief upon the sub- plaintiff with the crime of perjury, ject. Steen v. Friend (Ohio) supra. and repeated it several times, and the

Evidence of the pecuniary circum- evidence showing that the defendant stances of the defendant appearing was worth at least $100,000, and no in the record of a on appeal attempt being made to justify the acseems to have been a thing to which cusation, a verdict of $500 will not courts have frequently looked in de- be disturbed. Gaines v. Gaines (Ill.) termining whether verdicts, alleged supra.

The case

was said by the to be excessive, were so.

Gaines v. courts to be one in which punitive Gaines (1902) 109 Ill. App. 226; damages alone could be considered Reeves v. Roth (1912) 179 Ill. App. by the jury. 95; Mercy v. Talbot (1914) 189 Ill. In Reeves v. Roth (1912) 179 III. App. 1; Ross v. Ross (1844) 5 B. Mon. App. 95, an action for slander, the (Ky.) 20; Bodwell v. Osgood (1825) court said that as there “was no proof 20 Mass. 379, 15 Am. Dec. 228; Unter- of the wealth of the appellant [deberger v. Scharff (1892) 51 Mo. App. fendant), nor was there any proof of 102; Williamson v. Eckhoff (1914) special damages to the appellee,” a 185 Mo. App. 234, 170 S. W. 322; Hick- judgment for $2,000 was excessive, man v. Nelson (1919)

Mo. App. —,

but would be affirmed on condition of 211 S. W. 131. And see Cook v. Globe a $1,000 remittitur.

case

The defendant in an action for charging the plaintiff with being a thief being shown to be worth at least $75,000, an appellate court cannot say as a matter of law that 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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(187 N. C. 832, 123 S. E. 92.) Electricity, § 12 — sufficiency — injury by electricity.

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 Electricity, § 10 – degree of care consideration of evidence.

necessary.

3. A corporation engaged in pro2. Upon a motion as of nonsuit upon ducing and selling electricity for dothe evidence, the evidence must be mestic use must exercise the highest

degree of care in its distribution. considered in the light most favorable

[See 9 R. C. L. 1200; 2 R. C. L. Supp. to plaintiff.

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.:

ficient evidence, as shown from the The plaintiff conceded in this record, to go to the jury, as to the court that on the evidence adduced liability of the Southern Public Utilin the court below there was no er- ities Company. ror in the judgment of nonsuit The plaintiff contends that the against George W. Pryor and Vir- defendant Virginia-Carolina Amuseginia-Carolina Amusement Com- ment Company was a corporation pany. The only question that will operating theaters and places of be considered is, Is there any suf- amusement in Virginia and North Carolina, and George W. Pryor was rendered against plaintiff in the one of the owners and managers; court below, she assigns error, and that they were operating what appeals to the supreme court. known as the Piedmont Theater in Mr. J. F. Flowers, for appellant: the city of Charlotte. The plaintiff The application of the doctrine of was an actress, and engaged as a res ipsa loquitur permits the plaintiff performer, and it was her duty to

to offer the "fact of the accident,"

which is su Scient to take the case to press her aprons used as a part of

the jury and to "require" the trial her costume to be worn during the

court to submit the case to the jury for performance, and to press ward

determination. robes. She was furnished with an

Turner v. Southern Power Co. 154 electric iron for this purpose, and N. C. 131, C2 L.R.A.(N.S.) 848, 69 S. E. was injured as hereinafter stated. 767; Morrisett v. Elizabeth City Cot

The plaintiff alleges in the com- ton Mills, 151 N. C. 34, 65 S. E. 514; plaint: "That the defendant South- Shaw v. North Carolina Pub. Serv. ern Public Utilities Company was

Corp. 168 N. C. 611, 84 S. E. 1010; negligent, which negligence was the

Ridge v. Norfolk Southern R. Co. 167 proximate cause of the injury to

N. C. 518, L.R.A.1917E, 215, 83 S. E. the plaintiff, in that it failed to prop- 330, 104 S. E. 667; Modlin v. Simmons,

762; Page v. Camp Mfg. Co. 180 N. C. erly inspect its said system of wir

183 N. C. 65, 110 S. E. 661; White v. ing, appurtenances, and equipment Hines, 182 Ň. C. 275, 109 S. E. 31; whereby the current was transmit- Dail v. Taylor, 151 N. C. 284, 28 L.R.A. ted to the said theater, as aforesaid, (N.Ş.) 949, 66 S. E. 135; Fitzgerald v. and in permitting the said wiring, Southern R. Co. 141 N. C. 530, 6 L.R.A. appurtenances, and equipment to be- (N.S.) 337, 54 S. E. 391; Ross v. Doucome in such defective condition,

ble Shoals Cotton Mills, 140 N. C. 115, and such condition that it failed to

1 L.R.A.(N.S.) 298, 52 S. E. 121;

Womble v. Merchants Grocery Co. 135 perform the function for which it

N. C. 474, 47 S. E. 493. was installed in controlling and re

The utmost degree of care is reducing the current and the voltage, quired of companies chartered to furquantity, or power of said current,

nish electric current in the construcwhich was transmitted to the said tion, inspection, and repair of their building in such low voltage, quan- appliances, poles and wires. tity, or power as to be proper and Horne v. Consolidated R. Light & safe for uses in said building, and

P. Co. 144 N. C. 380, 57 S. E. 19; in negligently permitting the said

Haynes v. Raleigh Gas Co. 114 N. C. current to be transmitted to said

203, 26 L.R.A. 810, 41 Am. St. Rep. Piedmont Theater and its wiring lina Pub. Serv. Corp. 168 N. C. 611, 84

786, 19 S, E, 344; Shaw v. North Carosystem and equipment in such high S. E. 1010. voltage, quantity, and power as to An electric company, before sending make it unsafe for persons to use its current for lighting purposes and handle the equipment of said through apparatus installed in a buildtheater in the manner in which they ing by other parties, is bound on its were accustomed ordinarily to han- own responsibility to make reasondle the same, and this said negli- able inspection of the apparatus to see gence produced the injury to the

whether it is fit for use. plaintiff in that the said current of

Houston v. Durham Traction Co. 155

N. C. 9, 71 S. E. 21; Haynes v. Raleigh electricity was transmitted to the

Gas Co. 114 N. C. 203, 26 L.R.A. 810, iron which she was handling, as

41 Am. St. Rep. 786, 19 S. E. 344; aforesaid, in a dangerous, unsafe,

Mitchell v. Raleigh Electric Co. 129 and unusual quantity, voltage, and

N. C. 166, 55 L.R.A. 398, 85 Am. St. power.”

Rep. 735, 39 S. E. 801. The Southern Public Utilities

Messrs. Cook & Wyllie, W. S. O'B. Company denies these allegations. Robinson, Jr., and R. S. Hutchinson

From the judgment of nonsuit for appellees.

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