Kelly v. Durham Traction Co.

• Decision Date: 17 November 1903
• Citation: Kelly v. Durham Traction Co., 45 S.E. 826, 133 N.C. 418 (N.C. 1903)
• Parties: KELLY v. DURHAM TRACTION CO.
• Court: North Carolina Supreme Court

45 S.E. 826

133 N.C. 418

KELLY v. DURHAM TRACTION CO.

Supreme Court of North Carolina

November 17, 1903

On petition for rehearing. Petition dismissed.

For former opinion, see 43 S.E. 923.

DOUGLAS J.

This case is before us on a rehearing, having been decided in 132 N.C. 368, 43 S.E. 923. As, after careful consideration, we see no reason to change our opinion, and, as the points relied on in the petition to rehear was discussed in our former opinion, we can add but little thereto. We there held that, while there was no evidence that the defendant swore out the warrant, there were evidential circumstances from which the jury might infer that the warrant was issued at the instigation of the defendant. It is not necessary that the defendant should, through one of its authorized agents, make the affidavit on which the warrant is issued, or directly apply therefor. It is sufficient if it directly or indirectly procured it to be issued. The following extract from the case of Holden v. Merritt, 92 Iowa, 707, 709, 61 N.W 390, clearly expresses our own views: "If the jury believed this testimony, as they had a right to do, although much of it was denied by the defendant, then it is apparent that the defendant set the machinery of the law in motion; at least the jury was authorized to so find. It need not be shown that the defendant ordered or directed the warrant or process to issue, or that he participated in its execution. If he, on his own motion, gave information or made complaint to the officers of the law in such a manner as that, in the regular and ordinary course of events, an arrest must be made, or will probably follow, this is sufficient to warrant the jury in finding him the real prosecutor." Practically to the same effect is Tangney v Sullivan, 163 Mass. 166, 39 N.E. 799. In our former opinion it is said that: "It is not necessary to show who actually swore out the warrant, provided it was at the instigation or procurement of the defendant. (Citing authorities.) There was evidence tending to prove that the defendant instigated the prosecution. It is true it is merely circumstantial, but, if circumstantial evidence is competent on an issue of life or death, we see no reason why it is not equally competent in civil cases." While the warrant itself was not offered in evidence, it is not denied that it was issued, and in fact it is admitted in the defendant's answer and prayers for instructions. As the jury have found under proper instructions, and upon more than a scintilla of evidence, that the defendant procured the issue of the warrant, we can see no reason to disturb the verdict.

While we find no error that can affect the judgment in the present case, there is a defect of issues that might have necessitated a new trial as to both causes of action, had there been error in the submission of either. The plaintiff declared on two distinct...