McDougald v. Coward, 95 N.C. 368 (N.C.)

Smith, C. J.,

(after stating the facts). We are now prepared to enter upon an examination of the plaintiff's exceptions, and they have reference to the rulings upon the admissibility of evidence.

I. The defendant asked of one John Patrick, a witness introduced by the plaintiff, and examined as to a conversation with the defendant, in which the latter made charges of her improper relations with his son John, the following-question : “ What was the mental condition of the defendant at the time of that conversation ?” stating, on the plaintiff’s objection to its being answered, that it was not asked to show insanity, but the mental excitement under which the defendant was then laboring. The objection was overruled, and the witness answered, that his mind was as good as at any other time, and that he seemed uneasy about the absence of his son.

Two of the plaintiff's witnesses, on cross-examination, had before testified to the defendant’s mental distress about John, and this without objection. This testimony was offered and received in mitigation of damages, and to repel the charge that the slanderous remarks were the promptings of a causeless malice, and we do not see why it was not competent for such purpose. As actual malice shown, would authorize an enlargement of damages, we think the defendant’s distress about his son’s absence, caused, as he believed, by their unlawful relations and her presumed influence over one so young, was competent to be shown in reduction of damages.

Besides, the response elicited no fact calculated to prejudice the jilaintiff’s case, and the objection, when well taken, is directed not to the question, but to the evidence drawn out in response. Bost v. Bost, 87 N. C., 477 ; Perry v. Jackson, 88 N. C., 103.

Moreover, testimony was received under a promise of counsel thereafter to lay a basis for its admissibility, by showing the facts which gave rise to the defendant’s anxiety and trouble, and this was done, as shown in the case.

II. The plaintiff, examined on her own behalf, swore that no one had ever had sexual intercourse with her, as she had, in her verified complaint, before averred her chastity. She was then, on cross-examination, interrogated in reference to her permitting indecent liberties to be taken with her person, by certain named individuals, -which she denied. These persons were then called by defendant and permitted to prove the lewd conduct, after objection, as shown in the case. This testimony, while irrelevant if originally offered, as being out of the sphere of the controversy made in the pleadings, is-rendered competent by the plaintiff’s own testimony to her own untarnished virtue, and as tending to show the contrary, for where a woman thus surrenders her person to such liberties taken by men, the transition to personal prostitution is easy, and the space between them not wide.

There was no exception to the charge, and these being the only errors assigned, the judgment must be affirmed, and it is so ordered.

No error. Affirmed.