McCracken v. Sloan, 7826SC303

• Decision Date: 06 March 1979
• Docket Number: No. 7826SC303,7826SC303
• Citation: McCracken v. Sloan, 40 N.C.App. 214, 252 S.E.2d 250 (N.C. App. 1979)
• Court: North Carolina Court of Appeals
• Parties: William T. McCRACKEN v. O. B. SLOAN.

Page 250

252 S.E.2d 250

40 N.C.App. 214

William T. McCRACKEN v. O. B. SLOAN.

No. 7826SC303.

Court of Appeals of North Carolina.

March 6, 1979.

Blum & Sheely by Shelley Blum, Charlotte, for plaintiff-appellant.

U. S. Atty. Harold M. Edwards by Asst. U. S. Atty. Susan S. Craven, Asheville, for defendant-appellee.

WEBB, Judge.

At the outset, we are faced with the question of the procedure used by the superior court to reach a judgment in this case. The parties at a pretrial conference stipulated what the evidence most favorable to the plaintiff would be. On the basis of this stipulation, the court dismissed the action and the plaintiff appealed. We hold this is a proper way for the court to enter a judgment from which an appeal may be taken. We rely on Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557 (1962); Wimberly v. Parrish, 253 N.C. 536, 117 S.E.2d 472 (1960) and Rochlin v. Construction Co., 234 N.C. 443, 67 S.E.2d 464 (1951). Those cases state the rule to be: "(W)here a judge intimates an opinion on the law which lies at the foundation of the action, adverse to the plaintiff, or excludes evidence offered by the plaintiff which is material and necessary to make out his case, he may submit to a nonsuit and appeal." Rochlin, supra, at 444-45, 67 S.E.2d at 465. In Pickelsimer and Rochlin, the trial judge intimated an opinion that the plaintiffs' complaints did not state causes of action. In Wimberly, the court intimated an opinion as to the sufficiency of the evidence. We believe it is precedent for the procedure used by Judge Thornburg in this case.

Although the court below made detailed findings of fact in its order, we are not bound by them. The parties stipulated and made a part of the record what the plaintiff's evidence would tend to show. It is from this stipulation as to what the evidence would be that we must determine whether there is enough evidence to be submitted to the jury to support a claim for assault and battery.

We have found no case with a factual situation which controls this case. North Carolina follows the common law principles in the civil actions of assault and battery. See 1 Strong, N. C. Index 3d, Assault and Battery, § 1, p. 463, et seq. and the cases cited therein. See also W. Prosser, Handbook of the Law of Torts (4th Ed. 1971), p. 34, et seq. We rely on these cases and this textbook authority for the principles governing this case. It has been said that assault and battery which are two separate common law actions "go together like ham and eggs." The interest in freedom from apprehension of a harmful or offensive contact with the person is protected by the action for assault. The interest in freedom from intentional and unpermitted contacts with the plaintiff's person is protected by the action for battery. It is not necessary that the contact be brought about by a direct application of force. It is enough that the defendant set a force in motion which ultimately produces the result. The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff. At the same time, in a crowded world, a certain amount of personal contact is inevitable and must be accepted. Consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life. Smelling...