March 2, 1916. The opinion of the Court was delivered by This was an action by plaintiff against defendant for damages for an alleged false arrest or imprisonment. The answer contains a general denial, and sets up a further defense that the plaintiff, at the time of the alleged arrest, was indebted to the defendant, for goods furnished by defendant to plaintiff under a contract, by which the plaintiff sold the goods on commission and was to account to the defendant for the proceeds thereof, and had not done so, and that the plaintiff had collected a large part of the proceeds from such sales, and was about to take this money away from this State and use it for his own purposes; and the defendant learned of this, and went to see the plaintiff on that day, and upon his refusing to pay, did take hold of him, and asked to have him taken before a magistrate, but upon his agreement to make a settlement turned the plaintiff loose. After this answer was filed, the defendant made a motion before his Honor, Judge Prince, to file a supplemental answer, Judge Prince refused to allow the filing of the supplemental answer, and the defendant filed and served an exception to this order.
The case was tried on December 9, 1914, before Special Judge Ramage and a jury at the December, 1914, term of Court for Richland county, and resulted in a verdict in favor of the plaintiff for $500. After entry of judgment defendant appeals, and alleges error by seven exceptions.
The first exception is to the order of Judge Prince, and the other exceptions complain of error on the part of Special Judge Ramage. *Page 363
The seventh exception was in conflict with rule 5 of this Court. At the hearing of the case by this Court the defendant was allowed to amend this exception so as to conform to rule 5, and was also allowed to amend his first exception.
As to the first exception, the defendant cannot complain that he was not allowed to file a supplemental answer, as he was not prejudiced thereby as Judge Ramage, when the case was tried, permitted the defendant to bring out in evidence the facts responsive to the allegations of the supplemental answer as appears from the evidence in the record, and allowed the introduction of the record referred to in the supplemental answer, and Judge Ramage allowed the fact that the action was pending between them to come out.
The exceptions nowhere complain of error on the part of his Honor as to the admission or exclusion of any evidence, and if the defendant thought that his Honor was excluding any testimony in reference to this that was material and competent he should have stated why and wherein it was competent, and if ruled out excepted to the Judge's ruling. Having failed to do this defendant cannot now complain that he was not allowed to show certain facts by reason that the evidence was excluded, and we do not see how he has been prejudiced by Judge Prince's order refusing him leave to file a supplemental answer.
The second exception alleges error in not granting a new trial on the ground that one of the jurors, Walter Coward, was defective in hearing and therefore disqualified to sit as such, and that the Court erred in not having the said juror brought before him in open Court for examination. The juror was not disqualified under the Constitution and laws. He was not shown to be disqualified. At best it can only be said that he had the misfortune to be defective in hearing, this affliction does not per se disqualify him, it was the duty of the parties, plaintiff and *Page 364 defendant, before trial to exercise diligence, and it is a matter of common knowledge that most lawyers are very alert in canvassing in a proper way before selection the qualifications of ability and character of jurors.
Whether or not a new trial should have been granted on the showing made was a matter purely within the discretion of his Honor, and it was exclusively for his Honor to determine in what manner he would investigate the charge made that juror was deaf, either by examined the juror himself or by affidavit. If the juror had been in Court no doubt his Honor would have examined him, but to suspend the business of the Court and send for the juror might have, in his Honor's opinion, been wasting valuable time on a matter of not sufficient importance to do so, and from the showing made his Honor found that he was not deaf to such an extent as to warrant him in setting aside the verdict.
We find no erroneous exercise of discretion on the part of his Honor, and see no reason to disturb his finding.
The other exceptions complain of error on the part of his Honor in not charging defendant's request to charge in reference to the right of arrest without warrant, and that the defendant was entitled to show that the matters alleged in the supplemental answer and record in civil suit were in mitigation and justification.
Taking the Judge's charge as a whole it will be found that he in effect charged the law embodied in the appellant's requests, he charged what was necessary in relation to the rights and duties of a private citizen to arrest when a felony had been committed, and he correctly charged the law when he said that one making the arrest must be actuated by good motives with one view and that of assisting in bringing to justice a felon, who had violated the law, and that he did not have an ulterior motive.
He charged all of the law necessary to the determination of the case, the jury were charged that they should take into *Page 365 consideration all of the surrounding circumstances as shown by the evidence.
We find no errors of law upon the part of his Honor as complained of by the exceptions.
All exceptions are overruled. Judgment affirmed.