119 S.E. 892 | N.C. | 1923
Civil action to recover damages for an alleged wilful, malicious and negligent assault.
Plaintiff filed his complaint, alleging that the defendants did "unlawfully, wilfully and maliciously commit an assault on the plaintiff with pistols," to his great hurt and injury.
Defendants filed answer, alleging that they were acting within what they honestly believed to be their rights and proper self-defense as officers of the law in attempting to arrest and actually arresting the plaintiff.
To this the plaintiff filed a reply alleging that the defendants were grossly negligent in the discharge of their duties, etc.
Upon the issues thus joined, at the October Term, 1921, the jury returned the following verdict:
"1. Did the defendant wrongfully and unlawfully injure the person of the plaintiff as alleged in the complaint? Answer: `Yes.'
"2. If so, what damages by way of compensation is the plaintiff entitled to recover: Answer: `$300.'
"3. What punitive damages, if any, is the plaintiff entitled to recover? Answer: ........"
Judgment on the verdict in favor of plaintiff. Execution having been issued against the property of the judgment debtors and returned unsatisfied, plaintiff moved before the clerk, on 26 May, 1923, for execution against the person of two of the judgment debtors, to wit, Sid Dabbs and Wade Flake. This motion was disallowed and affirmed on appeal to the judge of the Superior Court at the June Term, 1923. From the order of the Superior Court, disallowing plaintiff's motion, he appeals, assigning same as error. There is but one question presented by this appeal: Is the plaintiff, on the instant record, entitled to execution against the person of two of the judgment debtors? We think not.
In the first place, it will be observed, there is no finding by the jury that the assault was committed wilfully or maliciously, but only *481
wrongfully and unlawfully. True, the issue uses the expression, "as alleged in the complaint," and the complaint contains an allegation of wilful and malicious injury, but in the reply this is reduced to an allegation of a grossly negligent injury. It would be highly technical to say the issue did not include the allegation of the reply as well as that of the complaint, simply because it closed with the words "as alleged in the complaint." None of the evidence adduced on the hearing appears in the statement of case on appeal, and hence we cannot say whether the allegation of the complaint, as distinguished from that of the reply, has been sustained. It is not specifically included in the issue submitted to the jury; and their failure to award any punitive damages would seem to negative a finding of malice or wanton disregard of the plaintiff's rights. To warrant an execution against the person of the judgment debtor, after plaintiff has exhausted his remedy against the property of the defendant, where the cause of arrest is set out in the complaint (Peebles v. Foote,
In the case of Huntley v. Hasty,
C. S., 768 (1), authorizes an arrest and holding to bail, among other cases, "where the action is for injury to person or character"; and C. S., 673, authorizes an execution against the person of the judgment debtor "if the action is one in which the defendant might have been arrested." In such case the person arrested may be discharged, after judgment and without payment, only by surrendering all of his property in excess of $50.Fertilizer Co. v. Grubbs,
In the light of these provisions, the law as applicable to the present case is clearly stated in Oakley v. Lasater, supra, as follows:
"In Dellinger v. Tweed,
Upon the record, plaintiff's motion for execution against the person of the judgment debtor was properly disallowed, as it does not appear from the verdict that the injury was inflicted intentionally or maliciously, or in wanton and reckless disregard of the plaintiff's rights.
Affirmed.