#### ELIZABETH ROOKS v. DR. W. H. BRUCE and D. C. MOREHEAD.

(Filed 2 February, 1938.)

1. Assault and Battery § 5—

Nonsuit *held*correctly allowed as to one defendant upon plaintiff’s testimony that the defendant did not curse, abuse, or frighten plaintiff, but merely took hold of his codefendant.

2. Trespass § 1—

Nonsuit on cause of action for trespass *held*proper upon failure of allegation and evidence of trespass other than for an assault, the motion to nonsuit on the cause of action for assault being denied.

3. Appeal and Error § 39b—

Exceptions to rulings upon the evidence relating to damages become immaterial when the answer to the first issue establishes that plaintiff was not injured by wrongful act of defendant.

4. Trials § 7—

The court has discretionary power to allow counsel for defendant to speak privately to defendant while he is a witness on the stand.

5. Trial § 34—

Objections to the statement of the contentions of a party must be made in apt time in order for assignments of error based thereon to be availing on appeal.

■ 6. Appeal and Error § 28—

An assignment of error for that the charge failed to state in a plain and correct manner the evidence and to explain the law arising thereon as required by C. S., 654, without pointing out its deficiencies, is too general.

7. Appeal and Error § 37d—

The verdict of the jury on conflicting evidence is conclusive in the absence of prejudicial error upon the trial.

Appeal by plaintiff from *Bivens, J.,*at September Term, 1937, of Fobsytii. No error.

*F. W. Williams for plaintiff, appellant.*

*Ffird & Liipfert for defendant Bruce, appellee.*

*Price & Jones for defendant Morehead, appellee.*

*59Schenck, J.

Tbis is an action to recover damages for injuries alleged to bave been inflicted by an unlawful and willful assault upon tbe plaintiff by tbe defendants.

. Tbe appellant assigns as error tbe granting of a motion for judgment as in case of nonsuit as to tbe defendant Morebead, lodged wben tbe plaintiff introduced ber evidence and rested ber case. C. S., 567. Tbis assignment of error cannot be sustained. Tbe plaintiff in ber own testimony says : “Morebead did not curse or abuse me at all. Tbe only thing Morebead did was to take bold of Dr. Bruce. . . . Morebead didn’t .scare me.”

Tbe appellant assigns as error tbe granting of a motion for judgment as in case of nonsuit as to tbe defendant Bruce “on tbe action charging trespass” lodged wben tbe plaintiff bad introduced her evidence and rested ber case. 0. S., 567. Tbis assignment cannot be sustained. There is neither allegation nor evidence of a cause of action for trespass other than that for an assault. Tbe motion for judgment as of nonsuit as to tbe defendant Bruce of tbe action for an unlawful and willful assault was denied.

There was evidence for tbe plaintiff tending to show that tbe defendant Bruce entered tbe place of business of tbe plaintiff, a bair-dressing establishment, and threatened plaintiff by cursing ber and by placing bis band on bis bip-pocket, and attempted to strike tbe plaintiff, and thereby caused ber to stop ber work and leave tbe place at which she was working. ■

There was evidence for tbe defendant tending to show that be did not enter tbe place of business of tbe plaintiff, did not threaten ber, and did not attempt to strike ber.

Tbe court submitted tbe following issues:

> ' “1. Did tbe defendant unlawfully and wrongfully assault tbe plaintiff, as alleged in tbe complaint ?

> “2. What actual damages, if any, is tbe plaintiff entitled to recover of tbe defendant?

> “3. What punitive damages, if any, is tbe plaintiff entitled to recover of tbe defendant?”

Tbe jury answered tbe first issue in tbe negative and left tbe remaining issues unanswered.

From judgment accordant with tbe verdict tbe plaintiff appealed, assigning errors.

Tbe first group of assignments of error are to tbe rulings upon tbe evidence which relate to tbe measure of damages. If such rulings were erroneous they were rendered harmless by tbe answer to tbe first issue. *Brewer v. Ring and Valle,*177 N. C., 476.

Tbe appellant assigns as error tbe fact that tbe court permitted counsel for defendant to speak privately to tbe defendant while be was a *60witness on the stand. It appears that the court granted this request of counsel in its discretion. In this there was no error, especially since it does not appear what counsel said to the witness, his client. “The court below is given large discretionary power as to the conduct of a trial. *Bowman v. Howard,*182 N. C., 662; *Banking Co. v. Walker,*121 N. C., 115; *Shober v. Wheeler,*113 N. C., 370; *S. v. Anderson,*101 N. C., 758; *Cheek v. Watson,*90 N. C., 302; and *Brooks v. Brooks, ibid.,*142. This discretion frequently has the effect of shortening trials and arriving at the main gist of the case.” *May v. Menzies,*186 N. C., 144.

The only assignments of error as to the charge are to the statement of certain contentions of the defendant. The objections upon which these assignments are based were made for the first time upon appeal. They came too late. They should have been made at the time the charge was delivered to avail the appellant. *S. v. Steele,*190 N. C., 506, and cases there cited.

The assignment of error that the court failed to state in a plain and correct manner the evidence and to explain the law arising thereon as required by C. S., 564, without stating in what manner the charge falls short of the requirements is too general and cannot be sustained. *Jackson v. Lumber Co.,*158 N. C., 318; *Davis v. Keen,*142 N. C., 496; *Simmons v. Davenport,*140 N. C., 407.

The jury heard the evidence, observed the witnesses on the stand, and, under a charge free from prejudicial error, answered the first issue *in favor of the defendant. It may have been that in the conflict of evidence the rule as to the burden of proof was determinative of the jury’s finding. However this may he, the jury having spoken, we are not at liberty to reverse their finding in the absence of prejudicial error.

No error.