*1 IN THE COURT OF APPEALS
FLIPPO v. HAYES (1990)] N.C. (1987) (citation 497, omitted). There are no in express words J. Allen Osborne’s will which convey would life estate to Almedia Osborne.
We have statutory examined the in and case law this State and find that the will in very our case is in similar to Leonard. that There, the will subject devised property power all “with full to tq convey sell or property]” the testator’s daughter, “[provid [the ed], that” if the daughter any part owned her property at death, the property would descend to her children or the heirs of such children. Id. at 359 S.E.2d 498.
Although the will in
Leonard
power
devisee full
sell
convey
or
the property, we
not
do
believe this
be a
material
difference. The Leonard court held that the will devised the proper-
ty to the testator’s
daughter
fee
simple,
gift
over
to her children did not limit the devise to a life estate. Id. at
82-83,
We hold will the case before us devised 128-acre tract in fee simple to Almedia Osborne and that the gift over to Thelma Osborne did limit the devise to a life estate.
Because we find that the trial court did not err in granting summary issue, judgment favor defendant’s above we need not address plaintiff’s remaining assignments error.
Affirmed.
Judges and Parker concur. Eagles (Successor Inc.), L.M.F., in Interest WILLIAM F. FLIPPO HAYES, JR., RICHARD JONES Defendant
No. 8925SC339 (Filed 1990) April (NCI3d)— Malicious Prosecution 13.1 wrong charged— offense second jeopardy double prob- —existence able Where defendant counterclaimed for prosecu- tion of a worthless check IN THE OF COURT
[98 of verdict on the claim to a directed was entitled plaintiff since defendant malicious building; he plaintiff’s storage into breaking admitted but was found “breaking entering” originally charged warrant defendant against not then swore out a plaintiff guilty; it was barred was dismissed because breaking; for this probable no want there was thus of jeopardy; double committed having when the defendant admitted act drafted liability improperly the magistrate rise to criminal Furthermore, plain- wrong offense. warrant of punitive a new on the issue tiff was entitled to trial check since of the worthless jury’s verdict how to ascertain from the impossible it was finding on the erroneous much of the award was based pro- of the criminal procured the institution plaintiff without cause. with malice and ceeding 36, 37, 50, 2d, §§ 55. Malicious Prosecution Am Jur Phillips Judge dissenting. A. Ferrell Judge Forrest plaintiff Judgment from APPEAL 1988 in 1988 and Order entered November
entered October County Appeals in the Court of Superior Court. Heard CATAWBA 1989. September Rice, T. Rice and Sandridge & Richard Carlyle Womble Custer, plaintiff appellant. M. Clayton appellee. Thomas Hannah N. for defendant COZORT, Judge. from verdict in favor of defendant
Plaintiff appeals We award prosecution. counterclaim for malicious on defendant’s punitive damages. new trial on the issue of plaintiff a into a lease May and defendant entered lake whereby portion plaintiff’s rented a defendant agreement defendant, job When who had lost his $500 month. per home difficulties, driver, of- to have financial began as a truck agreed to allow job in Virginia fered him a his business. plaintiff’s storage building truck in pickup defendant to store his for several working Virginia the lake house. After located near weeks, returned to North Carolina. job defendant his quit
IN THE COURT OF APPEALS He did return to live lake house made rent no that, payments January after of 1986. upon Defendant testified Carolina, returning to North he difficulty encountered some retriev- ing from property his the house and the truck that he left occasion, storage one building. On defendant went to truck, lake get house to his but plaintiff would not talk him. Defendant then went to the storage building and attempted cut lock on the door with pair bolt Failing cutters. that, he used a ladder to climb to the top of the building, opened roof, inside, a door on the looked and saw that his truck was not there. Plaintiff swore out a *3 against warrant for “breaking defendant and the entering” storage in building violation of N.C. Gen. Stat. 14-54(b).At trial on that the trial court directed a verdict of not Plaintiff guilty. attorney testified that the assistant district the prosecuting they him told that proved breaking had but entering. Plaintiff also testified that he talked the to magistrate day that issuing same about a breaking warrant for only, that magistrate the said he that would have to confer with attorney. the assistant district attorney The assistant district testified that he talking recalled but could not remember believe, however, the specifics of their conversation. He did not that he had given any thought to the double jeopardy issue at that time. He further testified that he spoken had to the magistrate day later that left issuance the second warrant the magistrate’s discretion. Plaintiff testified when he returned day, the next another on magistrate duty. After discussing the matter with plaintiff, this second magistrate issued a warrant breaking. for When the matter came the hearing, on district attorney dropped the as the prior jeopardy.
Plaintiff also swore out a warrant defendant for against writing a worthless check. Defendant was found not guilty. complaint
Plaintiff later filed a against defendant for breach answer, of the lease agreement. In as a defendant asserted counterclaim the claims a he filed alleged separate action theories, against plaintiff on various legal conversion and including prosecution. malicious The two actions were later consolidated trial. evidence, presentation
After of the the trial court plain- denied tiff’s motions for directed verdict on defendant’s counterclaims jury conversion malicious The prosecution. subsequently returned OF APPEALS IN THE COURT HAYES
FLIPPO v. $800.00. in the amount favor of on his claims verdict in $1,500.00 counterclaims, defendant jury the awarded On defendant’s conversion, of the worthless prosecution for malicious $800.00 of the prosecution for malicious charge, $10.00 check (The $45,000.00 initially found malicious damages. jury The damages. awarded no breaking charge of the prosecution further those two issues and jury asked the reconsider trial court if the nominal first jury the to award least instructed The favor. returned issue was decided defendant’s award.) notwithstanding judgment $10.00 Plaintiff’s motions for the verdict, verdict, were denied. and for new trial to set aside Plaintiff appeals. his court’s denial of motion assigns error to trial on the claim of malicious
for directed verdict present suffi- He contends that defendant failed to breaking charge. cause. He further contends of want cient evidence punitive damages he entitled to a new trial on the issue of by its verdict jury’s have been affected award could because on the charge. claim based agree. We proving prosecution, action for malicious *4 pro the earlier
claimant must show that
the defendant
initiated
pro
and that
the
maliciously
probable
and without
cause
ceeding
Gwynne,
v.
312
in the claimant’s favor. Jones
ceeding terminated
(1984).
393,
prosecu
323
9
cause in malicious
N.C.
S.E.2d
Probable
of such facts and
defined as “the existence
tion cases has been
time,
circumstances,
to him
the
as would induce
known
at
v.
Inn
Village
Pitts
prosecution.”
reasonable man to commence
(1978)
Inc.,
81, 87,
375,
Pizza,
379
249 S.E.2d
(quoting
296 N.C.
(1907)).
424, 430,
149,
Stewart,
57 S.E.
151
v.
144 N.C.
Morgan
party
of
cause is
the
proving
probable
The
of
want
burden
Gray,
v.
30
Gray
claim.
N.C.
prosecution
the malicious
pursuing
(1976).
417,
207,
205,
proof is not estab
226 S.E.2d
419
Such
App.
maliciously. Id.
by
the
was instituted
proof
proceeding
lished
Davis,
208,
v.
77
330
(citing
226
at 419
Tucker
N.C.
S.E.2d
(1877)).
established,
question
or
the
of
If the facts are admitted
court,
dispute
when
are in
is for the
the facts
cause
but
probable
Pitts,
87,
296
jury.
for the
N.C. at
is one of fact
question
IN THE OF COURT 119 N.C. 115 jurisdiction, this want of probable may be when found an accuser swears out a criminal warrant but the conduct of the Bennett, accused does not constitute a crime. Gray See 250 707, (1959); Denver, 110 N.C. S.E.2d 324 Smith v. 513 (1857). us, In the appeal before the question is whether want of probable by cause is plaintiffs established of mistake law procur ing institution of prosecution a second which was barred prior jeopardy. The rule that a defendant in a malicious prosecu may tion action be held liable for a of mistake law has been criti harsh, Keeton, Torts, cized as see Prosser and The Law (5th 1984), ed. Byrd, and see also Malicious Prosecution North Carolina, 285, (1968-69), 47 N.C.L. Rev. and is made harsher yet by the rule companion that advice of counsel does not afford a complete merely defense but is one factor to be considered in assessing the reasonableness of the defendant’s conduct. Finkle, 109, 112, 134 (1964). 130, 132 See Bassinov v. 261 N.C. S.E.2d cause, however, There is no want when the act which the accused admits having gives committed rise to criminal liability the magistrate improperly drafts the warrant to charge the wrong offense. Johnson v. Whittington, N.C. App. (1979). Johnson, S.E.2d 588 As in there no question that defendant committed the act alleged and that such as conduct a matter of law rise to probable cause procuring a criminal warrant. That a subsequent the principle of dou- ble is a jeopardy refinement the law which plaintiff could not reasonably be We expected impose will not anticipate. upon plaintiff the responsibility inquiry further making about the law double jeopardy prior swearing out the second warrant when particularly magistrate discussed the warrant with the attorney assistant any district who did not give thought jeopardy the double rule and left issuance of the warrant to the magistrate’s discretion. We therefore hold that defendant failed to produce evidence of want of probable cause and that it was error to the jury submit to the issue of The breaking charge. trial court’s denial of plaintiff’s motion *5 for directed verdict on that issue must be reversed.
Plaintiff is thus new of punitive entitled to a trial on the issue damages. only Although awarded nominal the breaking it is impossible to jury’s ascertain from the how much punitive verdict award was based on the erroneous finding plaintiff procured IN THE COURT OF MAXSON-BETTS, ERECTORS, INC. INC. v.
HARTRICK (1990)] with malice proceeding the criminal the institution cause. without new trial on remanded for' part Reversed damages. LEWIS concurs.
Judge Phillips dissents.
Judge Phillips dissenting.
Judge knowledge not chargeable is plaintiff I cannot agree by the breaking was barred defendant for prosecution of that his neminem ignorantia legis ancient maxim For under the law. one; Dictionary Black’s Law excuses no of law [ignorance excusat— Law, (3rd Broom, 1933); on the Common H. Commentaries ed. known that and direct to have presumed pp. —he unnecessary. I error. vote no was therefore that fact proof of MAXSON-BETTS, ERECTORS, INC. INC.
HARTRICK 8928SC605 No. 1990)
(Filed April (NCI3d)— by subcontrac- glass installed Indemnity § defective 3.1 to state sufficiency complaint contractor’s tor at direction — indemnity action to state a cause was sufficient complaint Plaintiff’s indemnity alleged that where subcontractor action and control of defendant supervision the direct it was under contractor, defendant, was damaged glass supplied was glass glass; damaged install the by defendant to instructed employed worker injured a winds and high was blown out reimburse compelled to party; neither injured paid which carrier compensation workers’ worker. 2d, Indemnity § 24.
Am Jur