Abbitt v. Bartlett

• Decision Date: 24 February 1960
• Docket Number: No. 98,98
• Citation: 252 N.C. 40,112 S.E.2d 751
• Court: North Carolina Supreme Court
• Parties: Mrs. Phereba ABBITT v. Charles H. BARTLETT, Jr.

Page 751

112 S.E.2d 751

252 N.C. 40

Mrs. Phereba ABBITT v. Charles H. BARTLETT, Jr.

No. 98

Supreme Court of North Carolina.

Feb. 24, 1960

M. John DuBose and Melvin K. Elias, Asheville, for plaintiff, appellant.

Richard Griffin and Guy Weaver, Asheville, for defendant, appellee.

MOORE, Justice.

After the jurors had begun their deliberations they returned to the courtroom for further instructions. The following transpired:

'Juror: Would you define malicious for us again, please?

'The Court: Now, Ladies and Gentlemen of the Jury, malice does not necessarily mean ill-will, anger, resentment or a revengeful spirit. To be sure those things are malice, but simply it means a wrongful act knowingly and intentionally done, without just cause or excuse or justification.

'Juror: Answer that second question again, please, that second paragraph.

'The Court: It means in addition to ill-will, anger, resentment and a revengeful spirit, a wrongful act knowingly and intentionally done, without just cause, excuse or justification.'

Plaintiff assigns as error the instruction given in the second response by the court. Plaintiff insists this instruction places upon her too great a burden. She contends that the court, in substance, instructed the jury that, in order for plaintiff to prevail upon the second issue, she was required to prove both actual and legal malice, when, as a matter of law, proof of either would suffice.

Where punitive damages are claimed it must be shown that plaintiff was wrongfully prosecuted from actual malice in the sense of personal ill-will, spite or desire for revenge, or under circumstances of insult, rudeness or oppression, or in a manner evincing a reckless and wanton disregard of plaintiff's rights. Where only compensatory damages are sought, plaintiff may show actual malice, but it is sufficient if plaintiff proves legal malice alone, that is, that the prosecution was wrongfully, knowingly and intentionally maintained without just cause or excuse. Mitchem v. National Weaving Co., 210 N.C. 732, 734, 188 S.E. 329; Downing v. Stone, 152 N.C. 525, 529, 68 S.E. 9; Stanford v. A. F. Messick Grocery Co., 143 N.C. 419, 428, 55 S.E. 815.

The legal proposition propounded by plaintiff is correct, but we do not agree with the construction she places on the challenged instruction. It must be construed in connection with the preceding response. The juror had asked the court to define 'malicious' again. The court, in effect, stated that actual malice need not be shown and that it would suffice if plaintiff had proven 'a wrongful act knowingly and intentionally done, without just cause or excuse or justification.' When the juror asked the next question the court interpreted it, and correctly so, as a request to repeat the definition of legal malice. This the court did. Taken alone and out of context, this latter instruction is erroneous, but when considered contextually with the former instruction it is correct and could not have misled the jury. Consecutive instructions pari materia must be construed in connection with each other. Taylor Co. v. North Carolina State Highway and Public Works Commission, 250 N.C. 533, 539, 109 S.E.2d 243.

Plaintiff noted an exception to the instruction of the court in response to a further inquiry by the juror:

'Juror: What consideration or weight should we take that she was acquitted in Police Court. You read that to us once.

'The Court: Now, Ladies and Gentlemen of the Jury, of course in any action such as this, it is necessary that they show that the action terminated in her favor; however, that is admitted, but it comes down then to the question of probable cause, which you must decide. The fact that a verdict of not guilty was entered over there creates no evidence one way or the other as to whether or not there was probable cause at the time.'

This instruction is correct. 'It is well established with us that when a committing magistrate, as such, examines a criminal case and discharges the accused, his action makes out a prima facie case of want of probable cause, that is the issue directly made in the investigation; but no such effect is allowed to a verdict and judgment of acquittal by a court having jurisdiction to try and determine the question of defendant's guilt or innocence; and the weight of authority is to the effect that such action of the trial court should not be considered as evidence on the issue as to probable cause or malice. In this case the justice had final jurisdiction to try and determine the question. The judgment is necessarily admitted, because the plaintiff is required to show that the action has terminated, but it should be restricted to that purpose, and the failure to do this constituted reversible error. (Citing authorities.)' Downing v. Stone, supra, 152 N.C. at page 530, 68 S.E. at page 11. The holding in the Downing case is in accord with the weight of authority in other jurisdictions. Annotation: 57 A.L.R.2d, Malicious Prosecution--Evidence, sec. 4, pp. 1094 et seq.

Appellant also excepts to a portion of the charge relating only to the 'probable cause' issue, third issue. The jury did not answer this issue. It reached a verdict adverse to the plaintiff before coming to the third issue. Having answered the 'malice' issue against the plaintiff, it was unnecessary that the third issue be answered, and error in the instruction with respect thereto is not prejudicial. Williams v. Cody, 236 N.C. 425, 426, 72 S.E.2d 867.

Inasmuch as want of probable cause is related to malice, as those terms are applied in malicious prosecution cases, it is the better practice to have the 'probable cause' issue precede the 'malice' issue. But here...