Butler v. Holt-Williamson Mfg. Co.

• Decision Date: 30 November 1921
• Docket Number: 288.
• Citation: 109 S.E. 559,182 N.C. 547
• Parties: BUTLER v. HOLT-WILLIAMSON MFG. CO.
• Court: North Carolina Supreme Court

109 S.E. 559

182 N.C. 547

BUTLER v. HOLT-WILLIAMSON MFG. CO.

No. 288.

Supreme Court of North Carolina

November 30, 1921

Appeal from Superior Court, Cumberland County; Daniels, Judge.

Action by M. F. Butler against the Holt-Williamson Manufacturing Company. Judgment for plaintiff, and defendant appeals. New trial.

It is not necessary to set out all the evidence. So much is stated as is necessary to explain the questions presented.

The plaintiff brought suit to recover damages for false arrest and imprisonment. Evidence for the plaintiff tended to show the facts to be as herein stated. The defendant corporation was engaged in manufacturing cotton cloth in the city of Fayetteville. On August 3, 1920, about sunset, the plaintiff went to Charles Maultsby's store, which was situated near the defendant's mill, to see Maultsby on a matter of business. Soon afterward he started home and followed a footpath which led through a field over defendant's land on which the defendant's operatives lived; but this path did not extend through the inclosed mill property. On the way the plaintiff met Ed Mazingo, the defendant's night watchman, who inquired where the plaintiff was going, and to the plaintiff's answer that he was going to the street replied, "You can go with me." Plaintiff and Mazingo walked to the street and stopped, and Mazingo asked plaintiff whether he knew any one there, and was referred by plaintiff to Cato Salmon. The two thereupon went to the Holt-Morgan Mill and had a conversation with Salmon, in which Mazingo said he had arrested the plaintiff "down the path." A policeman was then called, and the plaintiff and Mazingo went with him in a car to the courthouse, thence to the police station, and the plaintiff was placed in a cell, where he remained about an hour. The plaintiff then gave bond to appear at the trial the next morning, and was released from custody. Upon the hearing the court held the evidence to be insufficient, and the plaintiff was discharged. Mazingo was defendant's night watchman when the arrest was made, and had no warrant; he was not acting as policeman of the city, and was not on the pay roll; but the mayor had sworn him in as special policeman to serve the defendant as night watchman.

Evidence for the defendant tended to show the facts to be as follows Mazingo had been employed by the defendant as night watchman and had served in this capacity about four years. There was a wire fence 8 or 10 feet high, inclosing defendant's mill warehouses, and yard, and it was Mazingo's duty to stay inside this inclosure, to keep watch on the boilers, and to see that no one interfered with any property inside the fence. Mazingo's instructions, given him by the defendant's superintendent, limited his authority to the inclosure, and he exercised no authority, outside the fence, and had not done so during his four years' service. He had been sworn in as a special policeman of the city of Fayetteville, and had a badge which had been given him by the chief of police. The defendant did not request that he be sworn in as a special policeman, and knew nothing about it. Mazingo was instructed by the city authorities to serve anywhere in the city as policeman. He had made arrests in the city off the defendant's property, and in no case had he made an arrest as night watchman. On the night this plaintiff was arrested Mazingo was not acting as night watchman; he was off duty, and John Stevens had taken his place. Mazingo arrested the plaintiff, who was on a cement tile in the weeds near a woman's house, because he had been told by two or three people that a man of suspicious conduct had gone there. At the time of the arrest the plaintiff told him he was trying to ascertain whether Overton was going to see a certain woman who lived near by. After the plaintiff had been taken to police headquarters a warrant was "written out." The issues as to the wrongful arrest and as to compensatory damages were answered in favor of the plaintiff, and the defendant appealed.

Oates & Herring and Sinclair, Dye & Clark, all of Fayetteville, for appellant.

Bullard & Stringfield and H. L. Brothers, all of Fayetteville, for appellee.

ADAMS J.

First at the close of the plaintiff's evidence, and afterward at the conclusion of all the evidence, the defendant made a motion to dismiss the action as in case of nonsuit. Exception was duly entered to the court's denial of each motion. By the express terms of the statute the defendant has the benefit only of the latter exception. C. S. § 567. Riley v. Stone, 169 N.C. 423, 86 S.E. 348. Therefore all the evidence introduced at the trial must be accepted as true and construed in the light most favorable to the plaintiff. Rush v. McPherson, 176 N.C. 562, 97 S.E. 613.

The evidence introduced by the plaintiff tended to show that the mayor of the city of Fayetteville had administered the official oath to Mazingo, who was to serve the defendant, not the city, in the dual capacity of night watchman and special policeman; that on the evening of August 3, 1920, the plaintiff, while on the defendant's premises, was arrested by Mazingo without a warrant, restrained of his liberty in the mill office, carried thence in a car by Mazingo, and a city policeman to police headquarters, and there confined in a cell for the space of one hour; that he was then released from custody, having given bond to appear for trial on the day following; and that upon the hearing he was discharged by the court for want of sufficient evidence. The record does not show definitely that the mayor of the city administered the official oath to Mazingo at the request of the defendant, but it does tend to show that Mazingo had served the defendant as night watchman for a period of four years. There was other evidence tending to corroborate the testimony of the plaintiff concerning the circumstances under which the arrest was made. While we express no opinion as to its weight, we hold that the evidence was sufficient to justify his honor in declining the defendant's motion.

It is not necessary to discuss all the other exceptions entered of record, for the reason that one instruction which his honor gave the jury entitles the defendant to a new trial. In the argument here the defendant emphasized the contention that if Mazingo in fact made the arrest, he did so without the defendant's knowledge or authority, and that there...