Mitchem v. National Weaving Co.

• Decision Date: 25 November 1936
• Docket Number: 527.
• Parties: MITCHEM v. NATIONAL WEAVING CO.
• Court: North Carolina Supreme Court

188 S.E. 329

210 N.C. 732

MITCHEM v. NATIONAL WEAVING CO.

No. 527.

Supreme Court of North Carolina

November 25, 1936

Appeal from Superior Court, Gaston County; W. F. Harding, Judge.

Action by John Mitchem against the National Weaving Company. From an adverse judgment, the defendant appeals.

New trial.

In malicious prosecution action, plaintiff has burden to show concurrence of malice and want of probable cause.

Civil action for malicious prosecution.

On September 3, 1935, a hearing was had before a justice of the peace on a warrant sworn out by an officer of the defendant company, charging the plaintiff with obtaining goods from the defendant under false pretense, and plaintiff was bound over to the superior court. Thereafter, the grand jury returned "not a true bill," and the solicitor took a nolle prosequi.

Plaintiff sues for malicious prosecution.

From verdict and judgment, awarding both actual and punitive damages, the defendant appeals, assigning errors.

Emery B. Denny, of Gastonia, for appellant.

J. L Hamme, of Gastonia, for appellee.

STACY Chief Justice.

The following excerpt, taken from the charge, forms the basis of one of defendant's exceptive assignments of error "Now, under this issue, if you shall find that it was done without probable cause, the law implies that it was done with implied malice-a wrongful act done without legal justification." This instruction is not supported by the decisions on the subject.

It is true that malice, in the sense the term is used in actions for malicious prosecution, may be inferred from want of probable cause, but it is not presumed from such fact alone. Johnson v. Chambers, 32 N.C. 287.

Speaking to the identical question in Bell v. Pearcy, 27 N.C 83, where a similar instruction was held to be erroneous, Ruffin, C.J., delivering the opinion of the court, said: "We think, there is error in the point excepted to by the defendant. * * * Hence, it has been properly said, that malice may be inferred from the want of probable cause; Sutton v. Johnston, 1 Term, 493, 545. It is equally apparent, that it is not necessarily to be inferred therefrom. On the contrary, it must in every case be properly an enquiry for the jury as to the actual fact, under explanations from the court. If it were not so, it should be said at once, that the action lies for a prosecution without probable cause, for it is obviously idle to add, that there must also be malice in the prosecutor, if the want of probable cause proves malice. The law draws no such presumption; for though it often might be true, it would often be untrue in point of fact."

Again, in Turnage v. Austin, 186 N.C. 266, 119 S.E. 359, 361, it was said: "The absence of probable cause is not the equivalent of malice nor does it establish malice per se, though it is evidence from which malice may be inferred, and the existence of probable cause does not make the existence of malice. The presence or absence of malice in its final analysis is a question of fact to be determined by the jury, while probable cause is a mixed question of law and fact."

And in McGowan v. McGowan, 122 N.C. 145, 29 S.E. 97, it was held (as stated in headnote which accurately digests the opinion): "While, in some cases, malice may be inferred from the want of probable cause, the law makes no such presumption and, in the trial of an action for malicious prosecution, it is for the jury and not the Court to make such inference of fact."

The kind of malice required to support a verdict for actual as well as punitive damages in actions for malicious prosecution was the subject of extensive investigation in Downing v. Stone, 152 N.C. 525, 68 S.E. 9, 136 Am.St.Rep. 841, 21 Ann.Cas. 753; Stanford v. A. F. Missick Grocery Co., 143 N.C. 419, 55 S.E. 815; Motsinger v. Sink, 168 N.C. 548, 84 S.E. 847; and Humphries v. Edwards, 164 N.C. 154, 80 S.E. 165. See, also, Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446; Merrell v. Dudley, 139 N.C. 57, 51 S.E. 777; Kelly v. Traction Co.. 132 N.C. 368, 43 S.E. 923; 38 C.J., 478; 18 R.C.L., 28.

In Brown v. Martin, 176 N.C. 31, 96 S.E. 642, 643, Allen, J., delivering the opinion of the court, said: "The rule is established in Stanford v. Grocery Co., 143 N.C. 419, 55 S.E. 815, that legal malice, which must be present to support an action for malicious prosecution, may be inferred by the jury from the want of probable cause, and that it is sufficient as a basis for the recovery of compensatory damages, but that, when punitive damages are claimed, the plaintiff must go further and offer evidence tending to prove that the wrongful act of instituting the prosecution-'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 the reckless and wanton disregard of the plaintiff's right."'

The nolle prosequi taken by the solicitor was sufficient legal termination of the...