Taylor v. Hodge
| Decision Date | 01 December 1948 |
| Docket Number | 459 |
| Parties | TAYLOR v. HODGE. |
| Court | North Carolina Supreme Court |
E. D. Flowers, of Raleigh, and J. B. Bilisoly, of Wendell, for plaintiff-appellee.
L A. Doub, of Knightdale, and Sam J. Morris, of Raleigh, for defendant-appellant.
This action was brought to recover damages for an alleged malicious prosecution of the plaintiff by the defendant in a criminal action falsely charging him with stealing an 'electric skill saw'--an automatic carpenter's tool belonging to the defendant.
The complaint and answer are not involved in the exceptions and present no novel features. The sole exception is to the overruling of the defendant's demurrer to the evidence and motions for judgment as of nonsuit. On the trial the plaintiff's evidence in substantial summary tended to show as follows:
The plaintiff had served the defendant as carpenter foreman for about six years and in that capacity had charge of all the tools used, including the saw over which the controversy arose. Most of the time it was kept in the store, but when not there it was kept on plaintiff's porch. It had been used on the job on the Saturday morning when plaintiff quit work and was sitting in the little house next to defendant's where they had been working. It was brought to the porch and left there. The plaintiff testified that he had possession of all the tools when he was on the job and Mr. Hodge told him to take the skill saw.
The plaintiff wished to take employment where he was offered more money and told the defendant so. This the defendant resented and an acrimonious discussion followed.
There was no concealment of the saw or its location. However, Hodge was in possession of a brace and bit belonging to the plaintiff which had been borrowed and which he wanted returned. Hodge refused to return the brace and bit, saying that Taylor had treated him 'damned dirty' in leaving him; that he would never get the brace and bit. Thereupon Taylor refused to give up the saw until Hodge brought back the bit. After threatening to take out claim and delivery for the saw, the defendant angrily left the house, demanding however, that plaintiff vacate the house next day.
On the following Friday the plaintiff was arrested on a warrant sworn out by the defendant, charging him with stealing the saw. At the hearing before the recorder's court of Wendell, Taylor was bound over to the Superior Court, where in due time a nolle prosequi was taken, terminating the case.
Plaintiff testified as to the publicity given the charge of theft and incident damage to his reputation, and loss of employment.
The defendant's evidence differed from the plaintiff's at material points; but on the motion to nonsuit its comparative force and effect was a matter for the jury.
To make out a case of malicious prosecution it is necessary that the plaintiff show (1) malice; (2) want of probable cause and (3) favorable termination of the proceeding upon which his action is based. Perry v. Hurdle, 229 N.C. 216, 49 S.E.2d 400; Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276, 162 A.L.R. 793; Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708; Wingate v. Causey, 196 N.C. 71, 72, 144 S.E. 530; Pittsburg, J. E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 175, 50 S.E. 571, 3 Ann.Cas. 720.
Favorable termination of criminal action against the plaintiff is sufficiently shown by nolle prosequi in the Superior Court; Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740, 39 L.R.A.,N.S., 1215; Hatch v. Cohen, 84 N.C. 602, 37 Am.Rep. 630; there is evidence of express malice in the defendant's conduct, not merely of a general nature, but in specific application to the transaction under review; and constructive malice may be inferred from want of probable cause and reckless disregard of plaintiff's rights under reasonable notice thereof; the defense is, therefore, more particularly addressed to the question of probable cause.
What is probable cause, and what constitutes a lack of it,--both positive and negative conditions,--have been frequently and variously defined. Wilkinson v. Wilkinson, supra; Hatch v. Cohen, supra; Bowen v. W. A. Pollard, & Co., 173 N.C. 129, 91 S.E. 711; 34 Am.Jur., Malicious Prosecution, sec. 47 and cited cases. Under any definition given, we cannot see how the defendant can avoid the unfavorable inferences to be drawn from his conduct with respect either to its malicious motivation or want of probable cause.
Want of probable cause is regarded as a mixed question of law and fact....
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