Foster v. Hyman

• Decision Date: 08 May 1929
• Docket Number: 463.
• Citation: 148 S.E. 36,197 N.C. 189
• Parties: FOSTER v. HYMAN et al. (two cases). BYRD v. SAME.
• Court: North Carolina Supreme Court

148 S.E. 36

197 N.C. 189

FOSTER v. HYMAN et al. (two cases).

BYRD v. SAME.

No. 463.

Supreme Court of North Carolina

May 8, 1929

Appeal from Superior Court, Mecklenburg County; N. A. Townsend Special Judge.

Consolidated actions by James W. Foster, by Fred Byrd, and by Earl Foster each by next friend, against Gavin L. Hyman and another. Judgment for plaintiffs, and named defendant appeals. Error and cause remanded, with instructions.

Judgment by default and inquiry was conclusive that plaintiffs were entitled to nominal damages without proof.

Consolidated actions to recover damages for injuries to person and property alleged to have been caused by the negligence of the defendants, Hyman being an employee of C. C. Coddington, Inc., in causing a collision of the car he was driving (the property of C. C. Coddington, Inc.) with the car of the plaintiffs. At the conclusion of the evidence judgment of nonsuit was granted as to C. C. Coddington, Inc., and the following verdict was returned against Hyman:

"1. Were the acts of the defendant, Gavin L. Hyman, complained of, committed in a wilful and wanton manner as alleged in the complaint? Answer: Yes.

"2. What damages, if any, is the plaintiff, Earl Foster, entitled to recover of the defendant, Gavin L. Hyman, on account of injuries to his person? Answer: $250.

"3. What damages, if any, is the plaintiff, Earl Foster, entitled to recover on account of injury to his property? Answer: $390.00 with interest.

"4. What damages, if any, is the plaintiff, James W. Foster, entitled to recover of the defendant, Gavin L. Hyman, on account of injuries to his person? Answer: $50.00.

"5. What damages, if any, is the plaintiff, Fred Byrd, entitled to recover on account of injuries to his person? Answer: $50.00."

Judgment was rendered in behalf of the plaintiffs for the amounts respectively awarded them; and it was further adjudged that execution issue against the property of the defendant as provided by law, and, if returned unsatisfied in whole or in part, that execution issue against the person of the defendant. Hyman excepted and appealed.

John M. Robinson and Hunter M. Jones, both of Charlotte, for appellant.

T. L. Kirkpatrick and B. G. Watkins, both of Charlotte, for appellees.

ADAMS J.

The defendant in a civil action may be arrested "where the action is for injury to person or character, or for injuring, or for wrongfully taking, detaining or converting real or personal property." C. S. § 768. If the action is one in which the defendant might have been arrested, an execution against the person of the judgment debtor may be issued after the return of an execution against his property wholly or partly unsatisfied. C. S. § 673. The judgment, to the signing of which the appellant excepted, provides for an execution against his person; and his appeal presents the question whether the trial court committed error in ordering such execution upon the "pleadings and the evidence." It was perhaps in consequence of the decision in Peebles v. Foote, 83 N.C. 102, that section 673, C. S., was amended by the addition of the words, "whether such statement of facts be necessary to the course of action or not." Laws 1891, c. 541, § 2.

The appellant contends that error was committed because the complaints do not state causes of action for willful injury. It has been held that an execution against the person, which would deprive the defendant of his homestead and personal property exemption, cannot issue when the judgment is for an injury sustained merely by negligence or accident, but only when the injury has been inflicted intentionally or maliciously; that there must be some element of violence, fraud, or criminality. Oakley v. Lasater, 172 N.C. 96, 89 S.E. 1063. In that case the allegation in the complaint was that the injury had been inflicted "wrongfully, recklessly, and wantonly and after being forbidden by the plaintiff's agent," but the issue was, "Did the defendant negligently injure the mule of the plaintiff?" In Paul v. Auction Co., 181 N.C. 1, 6, 105 S.E. 881, 883, it is said that, on recovery for a tort founded on negligence merely, arrest and imprisonment on final process would be justified, "the cases holding further that to justify such imprisonment there must be a finding by the jury that the tort was 'wilfully committed." D' This statement of the law is in approval of the opinion to the same effect in McKinney v. Patterson, 174 N.C. 483, 93 S.C. 967. In the present case the complaint includes, not only the element of negligence, but the elements of willfulness and wantonness. After alleging that the defendant willfully, wantonly, and negligently failed and refused to perform certain duties imposed upon him, the plaintiffs say that the injuries they suffered were the direct and proximate result of the willful and wanton acts, as well as the negligent acts and the negligent omission of the defendant.

An act is done willfully when it is done purposely and deliberately in violation of law (State v. Whitener, 93 N.C. 590, State v. Lumber Co., 153 N.C. 610, 69 S.E. 58), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. McKinney v. Patterson, supra. "The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract or which is imposed on the person by operation of law." Thompson on Negligence (2d Ed.) § 20, quoted in Bailey v. R. R., 149 N.C. 169, 62 S.E. 912.

An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a...