D'Armour v. Beeson Hardware Co.

• Decision Date: 22 May 1940
• Docket Number: 671.
• Citation: 9 S.E.2d 12,217 N.C. 568
• Parties: D'ARMOUR v. BEESON HARDWARE CO., Inc.
• Court: North Carolina Supreme Court

9 S.E.2d 12

217 N.C. 568

D'ARMOUR v. BEESON HARDWARE CO., Inc.

No. 671.

Supreme Court of North Carolina

May 22, 1940

Civil action to recover both compensatory and punitive damages for alleged malicious prosecution.

On December 6, 1938, upon affidavit of J. Gurney Briggs charging that plaintiff aided and abetted J. V. D'Armour, Jr., in disposing of, and with removing to and secreting in the State of Georgia, a refrigerator on which Beeson Hardware Company had lien, with intent to prevent and hinder the enforcement of said lien, a warrant was issued under provisions of C.S. § 4288 for the arrest of plaintiff.Pursuant thereto she was arrested and held to bail to answer said charge in the municipal court of High Point.Upon trial in said court on January 29, 1939, there was verdict of "Not guilty".At this trial Attorney Waynick appeared in aid of the solicitor for the State in the prosecution of the action, and Briggs appeared as a witness for the State.

Plaintiff alleges that J. Gurney Briggs, in causing said warrant to be issued, was acting as the agent, employee and office manager of defendant and "within the scope of his authority"; that the "defendant employed a private prosecutor to assist the State in the effort to obtain a conviction of this plaintiff"; and that the prosecution was without probable cause and malicious "in that it was instituted and conducted for the purpose of extorting and extracting a sum of money from plaintiff".

Defendant denies these allegations and avers that it knew nothing of the prosecution until after the trial.

Upon the trial of the present action both parties introduced evidence.The case was submitted to the jury upon these issues which were answered as indicated:

1.Did the defendantBeeson Hardware Company cause the arrest and prosecution of the plaintiff, as alleged in the complaint?Answer: Yes.

2.If so, was the arrest without probable cause?Answer Yes.

3.If so, was the arrest malicious?Answer: Yes.

4.What amount of actual damages, if any, is the plaintiff entitled to recover of the defendant?Answer: $1,000.

5.What amount of punitive damages, if any, is the plaintiff entitled to recover of the defendant?Answer: None.

From adverse judgment thereon, defendant appeals to Supreme Court and assigns error.

D H. Parsons, of High Point, for appellant.

Gold McAnally & Gold and J. Keith Harrison, all of High Point for appellee.

WINBORNE Justice.

Though there are many assignments of error on this appeal, the points stressed for error relate to the basic question as to whether J. Gurney Briggs, in procuring the warrant for and arrest of plaintiff and in employing an attorney to prosecute and in prosecuting her on the criminal charge specified, was acting in the course of his employment and within the scope of his authority as agent of defendant.Regarding this basic question it is urged that the court erred (1) In the admission of incompetent evidence; (2) In refusing to grant motion for judgment as of nonsuit; and (3) In charge on pertinent principles of law.However, after careful consideration of the whole case, we find no prejudicial error.

1.It is well settled that neither the fact of agency nor its nature and extent can be proven by the acts and declarations of the agent.Parrish v. Boysell Mfg. Co.,211 N.C. 7, 188 S.E. 817, and cases there cited.Ordinarily, such acts and declarations are not admissible against the principal until evidence of the agency aliunde has been offered.West v. A. P. Messick Grocery Co.,138 N.C. 166, 50 S.E. 565.However, "proof of agency, as well as of its nature and extent, may be made by the direct testimony of the alleged agent".Parrish v. Mfg. Co.,supra, [211 N.C. 7, 188 S.E. 820], and cases cited.

In this connection, plaintiff, over objection by defendant, was permitted to testify that in the municipal court on the trial of the criminal action she heard Briggs testify that Mr. Ragan, president of the Beeson Hardware Company, authorized him to sign the warrant, and that "they arrested me to collect the money".While at the time this testimony was admitted it was incompetent, yet after Briggs as a witness for defendant had denied that he was so authorized by Mr. Ragan or any other officer of the company, and had stated that he did not remember that he testified in the criminal case that the warrant was to collect what he claimed plaintiff owed, the evidence of his declarations in those respects would have been competent for the purpose of contradiction and impeachment.Defendant would have had the right to have the court limit it to that purpose, but in the absence of request that it be so limited defendant would waive right to objection to its admission generally.State v. Hawkins,214 N.C. 326, 199 S.E. 284.Moreover, when the evidence of the declarations became competent for the purpose of contradiction and impeachment, even though previously admitted, defendant could have then moved the court to limit it to the purpose for which it was competent.Failure to do so constitutes waiver of the right.Ordinarily, the order in which evidence is admitted in conduct of the trial rests in the discretion of the court.We are, therefore, of opinion and hold that the testimony, incompetent when admitted, was subsequently rendered competent.

There are other objections to the admission of evidence which in the light of other evidence, admitted without objection, are harmless.

2.The principle is well established that where the relationship of master and servant exists the master is liable for the acts of his servant, whether negligent or malicious, which result in injury to third...