45 S.E.2d 361 | N.C. | 1947
The verdict established that the defendant had wrongfully caused the arrest of the plaintiff under a void warrant, and that the defendant was actuated by malice. Both compensatory and punitive damages were assessed, under separate issues, and from judgment on the verdict defendant appealed. Error is assigned chiefly on the ground that the complaint set out a cause of action for malicious prosecution, and that the court submitted instead issues pertinent to an action for false arrest, and that the case was tried on that theory. Defendant contends his motion for judgment of nonsuit should have been allowed.
True, the complaint alleged the elements of a malicious prosecution, that is, the institution of a criminal action, prompted by malice, and the termination of the action by plaintiff's acquittal. Carpenter v. Hanes,
The defendant excepted to certain portions of the judge's charge to the jury, and assigns error in the instruction given on the second issue as to malice to the effect that the plaintiff, in order to lay the basis for an award of compensatory damages, was not required to prove express malice but that malice might be inferred from the willful and purposeful doing of an unlawful act injurious to another. The exception is without merit. The defendant also pointed out that in the court's charge on this subject, and in the elaboration of the instruction referred to, the court used language in defining the elements of malice, which, it is contended, might have been understood to contain the expression of an opinion on the facts involved, but, taking the charge as a whole and considering it contextually, we do not think the jury was misled or that they were improperly influenced thereby. No prejudicial error has been shown. Collins v. Lamb,
On the issue as to punitive damages the jury was instructed in effect that before they could award smart money, in their discretion, they must first find by the preponderance of the evidence the presence of actual malice, and that they "had a right to take into consideration the lack of probable cause the man had for issuing the warrant, the degree of malice with which he was actuated in causing the arrest of the plaintiff, all his acts and conduct tending to show, if it does show, a reckless disregard of the plaintiff's rights." Exception was noted only to the instruction that the jury might consider, among other things, lack of probable cause. This exception cannot be sustained. Kelly v. Traction Co.,
Upon the whole case, considering the assignments of error brought forward in defendant's appeal as set out in his brief and orally presented in the argument, we think the result below should be upheld.
No error. *285