Allen v. Gardner
| Decision Date | 16 November 1921 |
| Docket Number | 399. |
| Citation | 109 S.E. 260,182 N.C. 425 |
| Parties | ALLEN v. GARDNER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Finley, Judge.
Action by James R. Allen against June T. Gardner. From a judgment for plaintiff, defendant appeals. Affirmed.
The court, on a motion for nonsuit, can only consider plaintiff's evidence.
This was an action for false imprisonment. The plaintiff alleges that he was wrongfully arrested and imprisoned in the city jail of Charlotte under the orders and directions of the defendant, in command of the First Regiment, North Carolina National Guard. The defense was that the defendant was acting under the orders of the Governor to quell a threatened riot in that city, and arrested the plaintiff upon a reasonable apprehension that it was his duty to do so.
The pleadings raised the issue whether the conduct of the defendant was in good faith or was arbitrary and unwarranted. The jury found all the issues against the defendant, who makes no exception except as to the refusal to nonsuit and the refusal to give certain prayers for instruction, which as the record shows, the court substantially gave. From the verdict and judgment the defendant appealed.
Phillips & Bower, of Lexington, and J. S. Manning, Atty. Gen., for appellant.
P. V Critcher and J. R. McCrary, both of Lexington, for appellee.
The evidence for the plaintiff, which alone is to be considered on a motion for nonsuit, was to the effect that the plaintiff was not a member of the defendant's command "the First North Carolina National Guard," but was a regular in the United States army on furlough, whose uniform and hat distinguished him from the members of the National Guard. The evidence also shows that he was a man of good character and went to Charlotte at the invitation of the officers of the Lexington Company to act as a bugler at the 20th of May celebration the next day. He had taken no bedding or other equipment with him, and therefore, not being prepared to sleep in the barracks of the National Guard on the night of the 19th, he was on his way to the hotel, all of which, he testifies, he explained fully and respectfully to the defendant when he was arrested, but avers that the defendant arbitrarily and unjustly, without reasonable cause and without any necessity to prevent a riot and without authority, sent him to jail.
The testimony of plaintiff and his witnesses is that at the time of the plaintiff's arrest and imprisonment and for some time previously the streets had been cleared of both civilians and soldiers with the exception of the guard of soldiers, and at the time of the plaintiff's arrest there was no commotion or disturbance going on anywhere. When the plaintiff was halted by one of the sentinels, he promptly obeyed the command, and when asked where he was going replied that he was a member of the regular army and did not belong to the National Guard, and was going to the hotel to get a bed to sleep on; that Col. Gardner, the defendant, told the plaintiff that "he would have to go back to the barracks." The witnesses testify that the plaintiff in a respectful manner repeated to Col. Gardner the above statement, and stated his object was to find a bed to sleep whereupon the defendant told him that he would have to respect him, and the plaintiff in a most respectful manner did salute him, but the defendant replied that "He did not give a d______ for his salutes," and in an angry manner told the plaintiff that he "would give him a bed" and ordered the witnesses to take him under arrest and carry him to jail, which was done, and the plaintiff was thrown into the city prison, with the humiliating circumstances of its filth and odors and disorderly inmates where he was kept confined until the...
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