Gray v. Cartwright

• Decision Date: 12 September 1917
• Docket Number: 9.
• Citation: 93 S.E. 432,174 N.C. 49
• Parties: GRAY v. CARTWRIGHT.
• Court: North Carolina Supreme Court

93 S.E. 432

174 N.C. 49

GRAY v. CARTWRIGHT.

No. 9.

Supreme Court of North Carolina

September 12, 1917

Exceptions from Superior Court, Pasquotank County.

Suit by Dempsey Gray against George W. Cartwright. Judgment for defendant, and plaintiff excepts. No error.

Ward & Thompson, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellee.

WALKER J.

Action for malicious prosecution. Defendant had prosecuted the plaintiff before a justice of the peace, for stealing his cow, valued at $30, and the justice, having, after hearing the evidence, adjudged that there was no probable cause for the accusation and that the defendant in that case was not guilty, dismissed the proceeding, and taxed the prosecutor with the costs. This suit was thereupon brought by the plaintiff, and resulted in a verdict and judgment for the defendant; the jury, upon issues submitted by the court, having found that there was probable cause.

At the trial of this case the defendant was asked the question whether, at the time he made the charge of larceny against the defendant, he believed it to be true, and that plaintiff had stolen his cow, to which he was permitted to answer after objection by the plaintiff, that he did believe it to be true. Plaintiff excepted.

There is some conflict in the authorities whether such a question is competent when the suit is brought solely for actual or compensatory damages, but we need not consider this view of the matter, as we find upon an examination of the charge of the court that the question of punitive damages was fully submitted to the jury, with the plaintiff's consent or acquiescence, and when this is done all the authorities are quite agreed that such a question is clearly competent. The general rule is thus stated in 25 Cyc. at page 420:

"Defendant may show in mitigation of damages that the libel or slander was published under an honest conviction of its truth arising from probable grounds of suspicion known to him at the time of publication, or that he otherwise acted in good faith and without malice. But it has been held that absence of malice mitigates exemplary, and not compensatory damages, and hence in a jurisdiction where compensatory damages alone can be recovered absence of malice is immaterial and cannot be shown."

And again at page 584:

"Where absence of malice on the part of defendant becomes material to the issue, any competent evidence legitimately tending to show that he made the publication in good faith under belief in its truth is admissible. So the fact that an alleged newspaper libel was published in the absence of the owner and against his orders is held admissible on the question of intent."

It was held in People v. Stark, 59 Hun, 51, 12 N.Y.S. 688, affirmed in 136 N.Y. 538, 32 N.E. 1046, and in Com. v. Scouten, 25 Pa. Co. Ct. R. 138, that defendant, in an action of this kind, may testify that he made the charge in good faith, upon the honest belief that it was true, which is the very question we are now considering. See, also, State v. Clyne, 53 Kan. 8, 35 P. 789. The principle is said to be based upon common sense, and to be fully justified by the reason, that, where actual malice, as distinguished from legal malice, is necessary to a recovery of damages, it is competent to show defendant's good faith, and an honest belief in the truth of his accusation, as it tends to rebut the actual malice, and to show that the charge was not induced by ill will toward the party accused, nor by a reckless disregard of his rights. The distinction between legal and actual malice, with reference to the recovery of punitive damages, was well stated by Hoke, J., in Stanford v. Grocery Co., 143 N.C. at pages 427, 428, 55 S.E. at pages 815, 818, where he said:

"It is also correct doctrine, as stated in the charge, that on a verdict for the plaintiff in malicious prosecution punitive or exemplary damages may be awarded by the jury. Kelly v. Traction Co., 132 N.C. 368 . This right to punitive damages does not attach, however, as a conclusion of law, because the jury have found the issue of malice in such action against a defendant. The right under certain circumstances to recover damages of this character is well established with us; but, as said in Holmes v. Railroad, 94 N.C. 318, such damages are not to be allowed 'unless there is an element of fraud, malice, gross negligence, insult or other cause of aggravation in the act which causes the injury.' And again, in the concurring opinion in Ammons v. Railroad, 140 N.C. 200 , it is said: 'Such damages are not allowed as a matter of course, but only when there are some features of aggravation, as when the wrong is done willfully or under circumstances of oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff's rights.' Attention is also called to this concurring opinion as to what may be properly included in compensatory damages."

And, discussing further this question, it was said later in the opinion, at page 428, of 143 N. C., at page 818, of 55 S. E.:

"The term 'malice' here, in reference to the question of damages, unlike its meaning in the issue fixing responsibility, means actual malice in the sense of personal ill will, and the jury should be instructed that, if they find the issue fixing responsibility in favor of the plaintiff, they shall award him compensatory damages, and if they further find that the wrongful act was done from actual malice in the sense of personal ill will, or under circumstances of insult, rudeness, or oppression, or in a manner which showed a reckless and wanton disregard of the plaintiff's rights, they may, in addition to compensatory, award punitive damages. Holmes v. Railroad, supra; Ammons v. Railroad, supra, concurring opinion; Bowden v. Bailes, 101 N.C. 612 ; Kelly v. Traction Co., supra; 1 Joyce, Damages, § 442, citing numerous authorities; 19 A. & E. 704."

We understand that, in order to establish the cause of action, it is sufficient to show merely the absence of probable cause, as evidence of it; but, if the plaintiff wishes to add punitive damages to his recovery, he must show actual malice, which imports an evil intent or wish, or design to vex, annoy, or injure him. People v. Stark, supra, where the point is carefully considered, and the authorities cited. When actual malice must be shown, it is held that evidence tending to show its nonexistence is competent.

We have discussed this question in order merely to show what appears to be the state of the decisions upon it, and not with a view of expressing any decided opinion as to their merit or the conclusions reached by the courts in them; for we hold that this exception, not being discussed in the brief of the plaintiff's counsel, is not, strictly speaking, before us, under rule 34 of this court, providing that:

"Exceptions to the record not set out in appellant's brief or in support of which no reason or argument is stated, or authority cited, will be taken as abandoned by him." 164 N.C. p. 551, 81 S.E. xii.

On the cross-examination of the plaintiff, who testified in his own behalf, he was asked many questions for the purpose of proving that he had committed similar offenses in regard to his neighbors' cattle, and especially that he had stolen this defendant's "bull yearling" of the Jersey blood. There appears to have been no objection to this part of the evidence, but later on the defendant was permitted to show that the plaintiff had committed like offenses in the same neighborhood. Plaintiff objected to this testimony upon the ground, as appears in his brief, that it was collateral and defendant was bound by the plaintiff's answers in respect thereto, and besides, that it was an attempt to establish one crime by proof of the commission of another...