Brewer v. Wynne

• Decision Date: 05 April 1911
• Citation: 70 S.E. 947,154 N.C. 467
• Parties: BREWER v. WYNNE et al.
• Court: North Carolina Supreme Court

70 S.E. 947

154 N.C. 467

BREWER v. WYNNE et al.

Supreme Court of North Carolina

April 5, 1911

Appeal from Superior Court, Wake County; Cooke, Judge.

Action by W. H. Brewer against J. S. Wynne and another. From an adverse judgment, defendants appeal. Affirmed.

Matters outside a complaint cannot be considered on its sufficiency against a demurrer.

This is an appeal from a judgment overruling a demurrer to the complaint.

The complaint is as follows:

"The plaintiff, complaining of the defendants, alleges:

"(1) That on the 16th day of February, 1910, while the plaintiff was engaged in the conduct of his business, in the city of Raleigh, said county and state, the defendants J. S. Wynne and J. P. Stell, without any lawful complaint or warrant, unlawfully and wrongfully with force and arms, assaulted the plaintiff and procured and caused the arrest of and assisted in the arrest of the plaintiff, and then and there unlawfully, wrongfully and forcibly imprisoned him in the common prison of said city, and there detained him in imprisonment for the space of one-half hour.

"(2) That no warrant was ever issued thereafter, charging the plaintiff with any offense, and when the matter came on to be heard before Ales Stronach, Esq., the police justice of the city of Raleigh, on the following day, there being no warrant or charge or evidence against the plaintiff, a nol. pros. was entered by the said police justice, and the plaintiff was discharged, which nol. pros. and discharge was prior to the institution of this action.

"(3) That in unlawfully and wrongfully assaulting the plaintiff and procuring and causing the arrest and imprisonment of the plaintiff as aforesaid, and in unlawfully and wrongfully making said arrest and imprisonment, the said defendants acted with gross negligence, malice, insult, and willful oppression and without probable cause.

"(4) That by reason of the aforesaid gross negligence, malice, insult, and oppression of the defendants in procuring and causing the arrest and imprisonment of the plaintiff as aforesaid, and in arresting and imprisoning the plaintiff as aforesaid, and by reason of said unlawful and wrongful assault, arrest, and imprisonment, he, the plaintiff, suffered great humiliation and injury to his feelings, and also great mental and physical pain, loss of time from his occupation, as well as great injury to his name, reputation, and business, to his damage $25,000.

"Wherefore the plaintiff prays judgment against the defendants for the sum of $25,000 damages, and for the costs of this action."

The defendants filed separate demurrers, but the same questions are raised in each, and the demurrer of the defendant Wynne alone is given.

"The defendant J. S. Wynne demurs to the complaint in this cause upon the ground that:

"(1) That said complaint does not state facts sufficient to constitute a cause of action:

"(a) In that the complaint alleges that the defendants J. S. Wynne and J. P. Stell 'unlawfully and wrongfully assaulted the plaintiff,' while engaged in his business, but fails to state any fact showing the nature of such business, or any facts showing that such assault, if there was any, was illegal; and the assault complained of is not sufficiently and legally set out, and the addition of vituperative words does not state facts sufficient to constitute a cause of action; and said defendant requests that this part of said complaint be stricken out and the action be dismissed at the cost of the plaintiff.

"(b) In that the complaint charges in general terms, with the addition of vituperative words, that the defendants 'procured and caused the arrest of' the plaintiff, but fails to state in what manner this procurement and causing of the said arrest (if any) of the plaintiff was illegal; and that the procurement and causing of the arrest complained of is not sufficiently and legally set out; and the defendant prays that his part of the complaint be stricken out and the action be dismissed at the cost of the plaintiff.

"(c) In that it charges in general terms, with the addition of vituperative words, that the defendants 'assisted in the arrest of the plaintiff,' but fails to state by whom such arrest (if any) was made and in what manner such arrest (if any) was illegal, or in what manner the assistance in such arrest (if any) was illegal, or in what illegal manner the defendant assisted in such arrest (if any); and that the assistance complained of is not sufficiently and legally set out; and the defendant prays that this part of said complaint be stricken out, and that this action be dismissed at the cost of the plaintiff.

"(d) In that the complaint alleges in general terms, with vituperative words, that the defendant 'imprisoned the plaintiff in the common prison of the said city and there detained him in imprisonment for the space of one-half hour,' but fails to state any facts showing in what character such imprisonment was made by such defendant (if there was any imprisonment), or that this imprisonment (if there was any) was illegal, or by whom the imprisonment (if any) was made, and that such imprisonment (if made) was illegal, and that said imprisonment (if any) complained if is not sufficiently and legally set out; and the said defendant prays that this part of said complaint be stricken out and that this action be dismissed at the cost of the plaintiff.

"(2) The said complaint is defective in the joinder of parties defendant, and there is a misjoinder of the parties defendant, in that, if the defendant

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