Ford v. McAnally

• Decision Date: 16 November 1921
• Docket Number: 387.
• Parties: FORD v. MCANALLY.
• Court: North Carolina Supreme Court

109 S.E. 91

182 N.C. 419

FORD v. MCANALLY.

No. 387.

Supreme Court of North Carolina

November 16, 1921

Appeal from Superior Court, Guilford County; Finley, Judge.

Action by L. S. Ford against Dr. W. J. McAnally. From judgment for plaintiff, defendant appeals. No error.

In action for false imprisonment, the issues whether the arrest of plaintiff was malicious and the amount of damages to which he was entitled held for the jury.

Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Did the defendant assault the plaintiff as alleged in the complaint? A. Yes.

(2) If so, what damage is the plaintiff entitled to recover of the defendant? A. $25.

(3) Did the defendant cause the arrest and prosecution of the plaintiff as alleged? A. Yes.

(4) If so, was the arrest without probable cause? A. Yes.

(5) If so, was the arrest malicious? A. Yes.

(6) What amount, if any, is the plaintiff entitled to recover of the defendant? A. $3,079."

There was a judgment entered on the verdict in favor of the plaintiff, from which the defendant appealed.

W. P Bynum and S. S. Alderman, both of Greensboro, and C. C Barnhart, of High Point, for appellant.

J Allen Austin and John A. Barringer, of Greensboro, for appellee.

STACY J.

There is no exception or question presented on the initial cause of action arising out of the alleged assault. Defendant concedes that the plaintiff is entitled to judgment on the first two issues, but contends that the allegations of the complaint and the evidence adduced on the hearing were not sufficient to warrant the verdict on the remaining issues, or those relating to the second cause of action.

Giving the complaint a liberal construction, as we are required to do under C. S. 535, and considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think the verdict and judgment should be upheld.

There is evidence on the record tending to show that after the assault, and without any warrant or other legal process, the plaintiff was arrested at the instance of the defendant and taken by two policemen to the police station in the city of High Point. The defendant followed the officers and made application, at the police station, for a peace warrant, and left instructions that the plaintiff be locked up which was done, and he remained in jail from about 9:00 a. m. until approximately 7:00 p. m., or practically the entire day. The evidence also discloses that the defendant signed the warrant in blank, which was afterwards filled out by one of the officers, charging L. S. Ford, plaintiff herein, with an assault with a deadly weapon, to wit, a pistol. At the trial, on the following morning in the recorder's court, Ford was acquitted and the prosecuting witness, defendant herein, was taxed with the cost.

The defendant denied that the arrest was made at his instance, or that he gave any instructions to have the plaintiff committed to jail under the warrant; but, during the course of his examination, he testified as follows:

"At the trial I asked the court to tax me with the costs. I did that because I was sorry for the man. The reason for my sympathy was just because I thought that he was feeble, hardly a responsible, man. It was after I made the request that the court released him. I was the least bit angry, when I was down there at the gallery. Yes, sir; I will say I was angry. I was angry enough to fight, but I didn't propose to fight him."

It is further contended by the defendant that, under authority of Oakley v. Tate, 118 N.C. 361, 24 S.E. 806, he should not be held responsible for the prosecution because of the officer's error in filling out the blank warrant charging the present plaintiff with an assault, when application had been made for a peace warrant only. But it appears unmistakably that the plaintiff was arrested without any warrant at all; that Dr. McAnally was present at the trial on the following morning; and the jury have found that he was there aiding in the prosecution. It could hardly be said that he was ignorant of what was going on. At any rate, there was no request to correct the error and change the warrant. Indeed, it would seem that by conduct, at least, the defendant adopted the warrant and ratified what the officer had done. The jury evidently took this view of the matter, as it was submitted to them by the court, and they have found, in answer to the third issue, that the defendant caused the arrest and prosecution of the plaintiff.

The...