Motsinger v. Sink

• Decision Date: 07 April 1915
• Docket Number: (No. 321.)
• Citation: 84 S.E. 847,168 N.C. 548
• Court: North Carolina Supreme Court
• Parties: MOTSINGER. v. SINK.

84 S.E. 847

168 N.C. 548

MOTSINGER.

v.SINK.

(No. 321.)

Supreme Court of North Carolina.

April 7, 1915.

Appeal from Superior Court, Forsyth County; C. C. Lyon, Judge.

Action by Charlie Motsinger against Samuel A. Sink, for malicious prosecution. Judgment for the defendant on nonsuit, and plaintiff appeals. Reversed, and new trial granted.

The plaintiff, as an employe of one W. H. Ziglar, traded a horse to the defendant, upon which it is alleged one W. N. Cundiff held a chattel mortgage, given by the man from whom Mr. Ziglar had purchased the horse. A civil action had been brought by the de-fendant against the plaintiff and others, and, after the termination of this action, the defendant, on the 19th day of April, 1913, caused a warrant to be issued by P. V. Critcher, judge of the recorder's court at Lexington, N. C., charging the defendant with disposing of mortgaged property in that "he assisted, aided, and abetted in the disposition and sale of the horse, knowing him to be mortgaged, with the intent to hinder, delay, and defraud the rights of the mortgagee, " contrary to the provisions of section 3435 of the Revisal. Four days thereafter the plaintiff was arrested on this warrant by the sheriff of Forsyth county, and was held in bail in the sum of $200 for his appearance before the court at Lexington for trial on this charge. The trial was had on May 17, 1913, and at the close of the evidence a nol. pros. was entered by the solicitor for the state, and the plaintiff was discharged. On the same day, and after his discharge on that warrant, another warrant was issued, at the request and upon the affidavit of the defendant, by said P. V. Critcher, judge of the recorder's court, at Lexington, N. C, charging this plaintiff with the crime of false pretense, in that it was alleged that he had sold this horse to the defendant, Sink, knowing it was mortgaged, with intent to cheat and defraud him. The plaintiff was arrested on this warrant and held to bail in the sum of $250 for his appearance at the court in Lexington on May 19, 1913. The trial was had on that date, and at the close of the evidence for the state a motion was made by counsel for the defendant that the warrant be quashed, which motion was granted, and the defendant again discharged. On the same day, and after his discharge, the defendant similarly obtained a third warrant charging this plaintiff with a false pretense in the sale of the horse, and alleging substantially the same facts as in the second warrant. Upon this warrant the plaintiff was again arrested for the third time, on the 27th of June, 1913, and was required to give bail in the sum of $200 for his appearance at the court in Lexington to answer this charge. There were several continuances of the case on account of the serious illness of the plaintiff, which necessitated his being confined in the hospital for many weeks, and finally it was tried on the 8th day of October, 1914, when the plaintiff was adjudged "not guilty, " and for the third time he was discharged. On the same day that he was discharged the last time, he brought this suit for malicious prosecution. These facts were testified to by the plaintiff, and he also swore that he was not guilty of any of the offenses with which the defendant had him charged. He also offered evidence which tended to show that he was a man of good character; that he had been put to considerable expense in counsel fees and otherwise, in attending these trials; and that he had suffered humiliation and mental anguish on account of being charged by the defendant with the crimes set out in the warrants. He also offered in evidence certified copies of the warrants, with the judgments of the court thereon, and rested his case. The defendant moved to nonsuit for that, as he contended, the plaintiff had failed to show that the prosecution for these various offenses was either malicious or without probable cause. The court sustained the motion to nonsuit, and dismissed the action.

The only exception and the only assignment of error in the record is directed to the ruling on this motion and to the order dismissing the action.

Louis M. Swink, of Winston-Salem, for appellant.

WALKER, J. (after stating the facts as above). [1] There is sufficient evidence in this case for the jury upon the question of malice. The meaning of that word, as used in defining what is malicious prosecution, is not necessarily ill will, anger, resentment, or a revengeful spirit, but simply a wrongful act knowingly and intentionally done the complaining party, without just cause or excuse. Stanford v. Grocery Co., 143 N. C. 419, 55 S. E. 815; Downing v. Stone, 152 N. C. 525, 68 S. E. 9, 136 Am. St. Rep. 841, 27 Ann. Cas. 753. It may be no more than the opposite of good faith.

Hale on Torts, 354, says that:

"Any prosecution carried on knowingly, wantonly, or obstinately, or merely for the vexation of the person being prosecuted, is malicious. Every improper or sinister motive constitutes malice, in this sense."

And Cooley on Torts, 338, says that: "Legal malice is made out by showing that the proceeding was instituted from any improper or wrongful motive, and it is not essential that actual malevolence or a corrupt design be shown." Holder v. Manufacturing Co., 135 N. C. 392, 47 S. E. 481, and cases cited.

If the object be to recover punitory or vindictive damages, particular or actual malice must be shown, something more than a mere injurious act committed without just or lawful excuse. Standford v. Grocery Co., 143 N. C. 419, 55 S. E. 815. The primary object of an action for damages is to recover compensation for the actual loss or injury sustained. The liability for punitive or exemplary damages, however, being for the purpose of punishment, or as an example, rests primarily upon the question of motive. And the jury are not at liberty to go beyond the allowance of a compensation, unless it be shown that the act was done willfully, maliciously, or wantonly, or was the result of a reckless indifference to the rights of others, which is equivalent to an intentional injury; and, when there is no proof that the injury was so inflicted, exemplary damages should not be allowed. Joyce on Damages, § 119; Wood v. Bank, 100 Va. 306. 40 S. E. 931; Gilreath v. Allen. 32 N. C. 67. The wrongful injury gives the right of action for com-pensation, and the malicious or wicked motive adds to it such other damages, sometimes called smart money, as the jury may reasonably award, as an example to others or in vindication of the law. Holmes v. Railroad Co., 94 N. C. 318; Kelly v. Traction Co., 132 N. C. 369, 43 S. E. 923. This question is fully discussed in the above-named cases, with a citation of the authorities, and further comment on this branch of the law is unnecessary. It is clear that, within the principles stated, there is evidence here of what may be called legal malice sufficient to sustain the action for compensation in damages, if not of express or actual malice. We therefore pass to the other points.

There must not only be malice, but a want of probable cause, for both must concur and are essential to every suit for a malicious prosecution. Malice may be inferred by the jury from a want of probable cause, but the converse is not true, that a want of probable cause may be likewise inferred from malice. Kelly v. Traction Co., supra; Newell on Malicious Prosecution, p. 265, § 3; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116; Sutton v. Johnstone, 1 T. R. 498; Foshay v. Ferguson, 2 Denio (N. Y.) 617; Murray v. Long, 1 Wend. (N. Y.) 140; Wood v. Weir, 5 B. Mon. (Ky.) 544.

It should be borne in mind, when passing upon the question of probable cause, in such an action as this one, that those facts and circumstances alone, which were known to the prosecutor in the criminal action at the time he instituted the prosecution, are to be considered in determining whether he bad a probable cause for the course he pursued in respect thereto. It is not the innocence of the plaintiff in the civil action, defendant in the other, nor facts tending to prove the same, that bear upon this question, for as Judge Daniel says in Swaim v. Stafford. 25 N. C. 289:

"The question of probable cause rested only on those facts and circumstances which were known to the prosecutor at the time he made his affidavit for the warrant."

See, also, Newell, p. 265, note, and cases; Foshay v. Ferguson, 2 Denio (N. Y.) 617; Delega v. Highly, 3 Bing. (N. C.) 950.

In Stacey v. Emery, 97 U. S. 645, 24 L. Ed. 1036, the court said, quoting from Justice Washington in Munns v. Dupont, 3 Wash. C. C. 37, Fed. Cas. No. 9, 926:

" 'If malice is proved, yet if probable cause exists, there is no liability. Malice and want of probable cause must both exist, ' to justify an action. He then defines probable cause in these words: 'A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.' Chief Justice Shaw defines it in similar language: 'Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty.' Ulmer v. Leland, 1 Me. [Creenl.] 135 . In Foshay v. Ferguson, 2 Denio [N. Y.] 617, the rule is laid down by Chief Justice Bronson. in the same language, with this addition: 'And such cause will afford a defense to a malicious prosecution, however innocent the plaintiff may be.' In that case there was evidence to justify a...