Downing v. Stone

• Decision Date: 11 May 1910
• Citation: 68 S.E. 9,152 N.C. 525
• Parties: DOWNING v. STONE.
• Court: North Carolina Supreme Court

68 S.E. 9

152 N.C. 525

DOWNING v. STONE.

Supreme Court of North Carolina

May 11, 1910

Appeal from Superior Court, Robeson County; Lyon, Judge.

Action by T. L. Downing against Scott Stone. Judgment for plaintiff and defendant appeals. Reversed; venire de novo.

Under the statute providing that if any person, with intent to cheat and defraud another, shall obtain advances under promise to begin work or labor, etc., and shall then unlawfully and willfully fail to commence or complete the work, he shall be guilty, etc., an instruction that, accused having commenced the work and labor according to the contract of employment, he was not indictable for failure to complete it was erroneous; mere commencement of the work not being an absolute defense.

There was evidence tending to show that on or about April 25, 1908 the defendant had caused the arrest and imprisonment of plaintiff, on a charge of having obtained from said defendant as landlord, with intent to cheat and defraud, advances and supplies to plaintiff as tenant. The prosecution having been instituted under section 3431, Revisal 1905, which gives a justice final jurisdiction, the evidence further showed that the plaintiff had been acquitted by the justice who tried the case. There was evidence on the part of plaintiff tending to show that he had acted throughout in good faith, that he had left defendant's premises for good cause, and that, as a matter of fact, he did not owe defendant anything for advancements or supplies at the time he moved away. There was evidence on the part of defendant that plaintiff, having agreed to become tenant of defendant, obtained goods and money by way of advancements, and had shortly thereafter abandoned the place without cause or excuse, and defendant having consulted counsel, placing the facts truthfully and fully before him, and being advised that on the facts as stated a prosecution would be under the statute, had instituted the same, etc.

The jury rendered the following verdict:

"(1) Did the defendant Scott Stone cause the arrest and prosecution of the plaintiff T. L. Downing as alleged? Answer: Yes.

"(2) Was the same done without probable cause? Answer: Yes.

"(3) Was the same done with malice? Answer: Yes.

"(4) Has the criminal action terminated? Answer: Yes.

"(5) What damages, if any, has plaintiff sustained thereby? Answer: Twelve hundred and fifty dollars."

Wishart, Britt & Britt and McIntyre, Lawrence & Proctor, for appellant.

McLean, McLean & Snow and W. H. Kinlaw, for appellee.

HOKE J.

The defendant excepted for that the court refused to charge the jury as requested that, in order to answer the issue as to malice for the plaintiff, it was required that plaintiff should establish particular malice against the defendant, insisting that the term "particular malice" in this connection should be understood in the sense of personal ill will or grudge towards the defendant, and charged instead: "Particular malice means ill will, grudge, a desire to be revenged. Malice within the meaning of this issue does not necessarily mean ill will, but a wrongful act, knowingly and intentionally done the plaintiff without just cause or excuse, will constitute malice, and should you find from the evidence, and by the greater weight thereof, the burden being on the plaintiff, that the defendant, Stone, was actuated by malice towards the plaintiff in taking out the warrant and causing the plaintiff's arrest, you will answer the third issue, Yes. If you do not so find, you will answer the third issue, No." The rulings of the court below on both of these questions find support in an express decision of this court (Stanford v. Grocery Co., 143 N.C. 419, 426, 427, 55 S.E. 815), and the position is supported by the better reason, and is in substantial accord with the great weight of authority ( Wills v. Noyes, 29 Mass. 324; Vinal v. Core & Compton, 18 W.Va. 1; Burhans v. Sanford & Bram, 19 Wend. [N. Y.] 417; Frowman v. Smith, Litt. Sel. Cas. 7, 12 Am. Dec. 265, note 1; Gee v. Culver, 13 Or. 598, 11 P. 302; Pullen v. Glidden, 66 Me. 202; Harpham v. Whitney, 77 Ill. 32; Hadrick v. Hestop, 64 E. C. L. 266; Johnson v. Ebberts [C. C.] 11 F. 129; 19 A. & E. 675; 26 Cyc. 48, 49; Hale on Torts, 354; Cooley on Torts, 338).

In Hale on Torts, supra, treating of malicious prosecution, it is said: "'Malice,' as here used, is not necessarily synonymous with 'anger,' 'wrath,' or 'vindictiveness.' Any such ill feeling may constitute malice. But it may be no more than the opposite of bona fides. Any prosecution carried on knowingly, wantonly or obstinately, or merely for the vexation of the person prosecuted, is malicious. Every improper or sinister motive constitutes malice in this sense. The plaintiff is not required to prove 'express malice' in the popular sense. The test is: Was the defendant actuated by any indirect motive, in preferring the charge or commencing the action against the plaintiff?" In Cooley, supra, the author says: "Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful motive, and it is not essential that actual malevolence or concept design be shown." In Vinal v. Core & Compton, supra, the court, on this question, held: "(6) By the last requisite, malice, is meant, not what this word imports, when used in common conversation, nor yet its classical meaning, but its legal and technical meaning, that is, some motive other than a desire to secure the punishment of a person believed by the prosecutor to be guilty of the crime charged, such as malignity, or a desire to get possession by such means of the goods alleged to be stolen, when the charge is larceny, or any other sinister or improper motive." In Gee v. Culver, supra, it was held: "(1) Malice, in the enlarged sense of the law, is not restricted to anger, hatred, and revenge, but includes every unlawful and unjustified motive. And in an action for malicious prosecution any motive, other than that of simply instituting a prosecution for the purpose of bringing a party to justice, is a malicious motive. (2) In actions for malicious prosecution, there is no such thing as implied malice, but malice in fact must be proved, and its existence is purely a question of fact for the jury, but such malice may be inferred from any improper or unjustifiable motives which the facts disclose influenced the conduct of the defendant in instituting the prosecution. And the act itself, with all the surrounding facts and circumstances, may be inquired into for the purpose of ascertaining such motive." And Lord, J., delivering the opinion, said further: "But the term 'malicious' has in law a twofold signification. There is what is known as malice in law, or implied malice, and malice in fact, or actual malice. Malice in law denotes a legal inference of malice from certain facts proved. It is a presumption of malice which the law raises from an act unlawful in itself which is injurious to another, and is declared by the court. Malice in fact, or actual malice, relates to the actual state or condition of the mind of the person who did the act, and is a question of fact upon the circumstances of each particular case to be found by the jury. In actions for malicious prosecution, there is no such thing as malice in law, but malice in fact must be proved, and its existence is purely a question of fact for...