Hussey v. King

• Decision Date: 28 November 1887
• Citation: 3 S.E. 923,98 N.C. 34
• Parties: HUSSEY v. KING and others.
• Court: North Carolina Supreme Court

3 S.E. 923

98 N.C. 34

HUSSEY v. KING and others.

Supreme Court of North Carolina

November 28, 1887

Appeal from superior court, No. 8, Tyrrell county; AVERY, Judge.

In an action for damages for malicious prosecution, wherein a corporation and its general manager were joined as partiesdefendant, the corporation demurred on the ground that it appeared that the acts complained of were those of the general manager, and not done within the scope of his authority or duty, nor in the service of the company.Held that, the acts complained of being ultra vires, they could not be within the scope of the power of the company or its agents, and an allegation of authority was not necessary.

Grandy & Aydlett, for plaintiff.

Starke & Martin, for defendant.

DAVIS J.

This action was tried on complaint and demurrer before AVERY, J at spring term, 1887, of Tyrrell superior court.The plaintiff alleged.(1) That the defendantNorfolk Southern Railroad Company is a corporation duly chartered under the laws of North Carolina, doing business under said name, in building, constructing, equipping, and operating a railroad in the state, and running steamers, connecting the business of said road with several business and commercial points on Albemarle sound and Alligator, Scuppernong and Roanoke rivers, in said state, and the defendantM. K. King is general manager of said company's business.(2) That G M. SCOTT is a justice of the peace in and for Pasquotank county, having been duly appointed and qualified as such, and was at the time of the act hereinafter complained of, and his acts are entitled to full faith and credit as such, and were at that time.(3) That on or about the twenty-fourth day of July, 1885, the defendants, maliciously and want only intending to injure plaintiff in his good name, fame, and reputation, and to bring him into ridicule and public contempt, appeared before G. M. SCOTT, a justice of the peace of Pasquotank county, in the state of North Carolina, as aforesaid, falsely, maliciously, wantonly, and without any reasonable or probable cause whatsoever, charged this plaintiff before said justice of the peace in a written affidavit duly sworn to, with having left and withdrawn himself from the service of defendants' company, on or about the tenth day of March, 1885, and carrying with him several amounts of money, to-wit, the sums of $6, $23.02 $10, and $3.59, belonging to said company, with a felonious intent to steal the same, and defraud said company; and further charges this plaintiff before said justice at same time, without any reasonable or probable cause whatsoever with having embezzled said money, while plaintiff was in the employment of said company, and converting the same to his own use, with the purpose of stealing the same or of defrauding said company; and wantonly, maliciously, without any reasonable or probable cause, procured said justice of the peace to grant a warrant for the arrest of this plaintiff upon said charge, which was malicious, false, and untrue in all respects; and defendants well knew said charges were false and untrue at the time.(4) That G. M. SCOTT, the said justice, issued his warrant accordingly on the twenty-fourth day of July, 1885, and defendants caused this plaintiff to be arrested and imprisoned under the same, being held in custody of the officer of the law until he gave bail, as he was obliged to do, for his appearance at the trial and examination of the cause.(5) That afterwards, to-wit, on the twenty-eighth day of July, 1885, the day of examination and trial, the plaintiff having been examined and tried before the said justice for said supposed crime, according to law, the said justice adjudged the plaintiff not guilty thereof, and fully acquitted him of the same, and discharged him, and since that time the defendants have not further prosecuted their said complaint, but have abandoned the same.(6) That by means of said wanton, malicious, unlawful, and false charge and malicious prosecution of the defendants against this plaintiff, as aforesaid, plaintiff has been injured in his person, good name, fame, reputation, and brought into ridicule and public contempt, and prevented from attending to his business, and compelled to pay large sums of money, costs, and counsel fees, in defending himself against said charge, to his damage, $5,000.

For a second cause of action, the plaintiff alleges that he was wrongfully and unlawfully arrested and imprisoned by reason of the warrant issued upon the false, wanton, and malicious charge of the defendants; that he was acquitted of said charge by the justice, the warrant dismissed, and he was discharged from custody.The damages are laid at $5,000.

And for further cause of action plaintiff, complaining of defendants alleges: (1) That on or about the twenty-fourth day of July, 1885, the defendants wantonly, maliciously intending to slander and scandalize plaintiff in his good name, fame, and reputation and to bring him into ridicule and public contempt, and destroy his character, appeared before G. M. SCOTT, a justice of the peace of Pasquotank county and state aforesaid, and then and there, in the presence and hearing of said SCOTT and several other persons, charged plaintiff in the written affidavit of defendantM. K. King, general manager of defendantNorfolk Southern Railroad Company, with having stolen and embezzled several certain sums of money belonging to the defendant company, to-wit, the sums of $6, $23.02, $10, and $3.59, in words and figures as follows, to-wit: "That on or about the tenth day of March, 1885, the Norfolk Southern Railroad Company, a corporation duly chartered by the legislature of North Carolina, in said county of Pasquotank, delivered its check for four hundred and fourteen dollars and seventy-nine cents, ($414.79,) and drawn upon the Exchange National Bank of Norfolk, Va., in favor of F. N. Hussey, master of steamer called 'M. E. Dickerman;' that on or about the date aforesaid the said F. N. Hussey negotiated the said check, and obtained the money therefor;""and afterwards withdrew himself from the service of said company, and went away with a part of said money, with intent to steal the same, and defraud the said company, to-wit, six dollars, twenty-three dollars and two cents, ten dollars, three dollars and fifty-nine cents, thereby accusing and charging this plaintiff with the high crime of larceny; that the said F. N. Hussey, at or about the date above named, being then a servant of said company, and so possessed of certain money of said company, intrusted to him, did, without the assent of his employer, the said Norfolk Southern Railroad Company, embezzle certain parts of said money, to-wit: the sums of $6, $23.02, $10, and $3.59, and convert the same to his own use, with the purpose of stealing the same, or of defrauding the said company thereof, thereby and by these means intending to accuse this plaintiff with the high crime of embezzlement."(2) That though these charges were false and untrue, and defendant knew them to be so at the time, they procured the said justice to grant a warrant for the arrest of plaintiff, and caused him to be arrested, and imprisoned, wrongfully and unlawfully, upon said false charge, and detained in custody of the officer of the law, and to give bond to appear before said justice for examination and trial on the twenty-eighth day of July, 1885, and the defendants then and there appeared upon said trial and examination, and again in the presence of said G. M. SCOTT and many other persons at the court-house in Elizabeth City, Pasquotank county, N. C., and at divers other places before and since, charged and accused this plaintiff with stealing and embezzling money, the property of defendantNorfolk Southern Railroad Company, as above set out, the sums of $6, $23.02, $10, and $3.59,...