Mrs. Phereba ABBITT
v.
Charles H. BARTLETT, Jr.
No. 98.
Supreme Court of North Carolina.
February 24, 1960.*753 M. John DuBose and Melvin K. Elias, Asheville, for plaintiff, appellant.
Richard Griffin and Guy Weaver, Asheville, for defendant, appellee.
MOORE, Justice.
After the jurors had begun their deliberations they returned to the courtroom for further instructions. The following transpired:
"Juror: Would you define malicious for us again, please?
"The Court: Now, Ladies and Gentlemen of the Jury, malice does not necessarily mean ill-will, anger, resentment or a revengeful spirit. To be sure those things are malice, but simply it means a wrongful act knowingly and intentionally done, without just cause or excuse or justification.
"Juror: Answer that second question again, please, that second paragraph.
"The Court: It means in addition to ill-will, anger, resentment and a revengeful spirit, a wrongful act knowingly and intentionally done, without just cause, excuse or justification."
Plaintiff assigns as error the instruction given in the second response by the court. Plaintiff insists this instruction places upon her too great a burden. She contends that the court, in substance, instructed the jury that, in order for plaintiff to prevail upon the second issue, she was required to prove both actual and legal malice, when, as a matter of law, proof of either would suffice.
Where punitive damages are claimed it must be shown that plaintiff was wrongfully prosecuted from actual malice in the *754 sense of personal ill-will, spite or desire for revenge, or under circumstances of insult, rudeness or oppression, or in a manner evincing a reckless and wanton disregard of plaintiff's rights. Where only compensatory damages are sought, plaintiff may show actual malice, but it is sufficient if plaintiff proves legal malice alone, that is, that the prosecution was wrongfully, knowingly and intentionally maintained without just cause or excuse. Mitchem v. National Weaving Co., 210 N.C. 732, 734, 188 S.E. 329; Downing v. Stone, 152 N.C. 525, 529, 68 S.E. 9; Stanford v. A. F. Messick Grocery Co., 143 N.C. 419, 428, 55 S.E. 815.
The legal proposition propounded by plaintiff is correct, but we do not agree with the construction she places on the challenged instruction. It must be construed in connection with the preceding response. The juror had asked the court to define "malicious" again. The court, in effect, stated that actual malice need not be shown and that it would suffice if plaintiff had proven "a wrongful act knowingly and intentionally done, without just cause or excuse or justification." When the juror asked the next question the court interpreted it, and correctly so, as a request to repeat the definition of legal malice. This the court did. Taken alone and out of context, this latter instruction is erroneous, but when considered contextually with the former instruction it is correct and could not have misled the jury. Consecutive instructions pari materia must be construed in connection with each other. Taylor Co. v. North Carolina State Highway and Public Works Commission, 250 N.C. 533, 539, 109 S.E.2d 243.
Plaintiff noted an exception to the instruction of the court in response to a further inquiry by the juror:
"Juror: What consideration or weight should we take that she was acquitted in Police Court. You read that to us once.
"The Court: Now, Ladies and Gentlemen of the Jury, of course in any action such as this, it is necessary that they show that the action terminated in her favor; however, that is admitted, but it comes down then to the question of probable cause, which you must decide. The fact that a verdict of not guilty was entered over there creates no evidence one way or the other as to whether or not there was probable cause at the time."
This instruction is correct. "It is well established with us that when a committing magistrate, as such, examines a criminal case and discharges the accused, his action makes out a prima facie case of want of probable cause, that is the issue directly made in the investigation; but no such effect is allowed to a verdict and judgment of acquittal by a court having jurisdiction to try and determine the question of defendant's guilt or innocence; and the weight of authority is to the effect that such action of the trial court should not be considered as evidence on the issue as to probable cause or malice. In this case the justice had final jurisdiction to try and determine the question. The judgment is necessarily admitted, because the plaintiff is required to show that the action has terminated, but it should be restricted to that purpose, and the failure to do this constituted reversible error. (Citing authorities.)" Downing v. Stone, supra, 152 N.C. at page 530, 68 S.E. at page 11. The holding in the Downing case is in accord with the weight of authority in other jurisdictions. Annotation: 57 A.L.R.2d, Malicious ProsecutionEvidence, sec. 4, pp. 1094 et seq.
Appellant also excepts to a portion of the charge relating only to the "probable cause" issue, third issue. The jury did not answer this issue. It reached a verdict adverse to the plaintiff before coming to the third issue. Having answered the "malice" issue against the plaintiff, it was unnecessary that the third issue be answered, and error in the instruction with respect thereto is not prejudicial. Williams v. Cody, 236 N.C. 425, 426, 72 S.E.2d 867.
*755 Inasmuch as want of probable cause is related to malice, as those terms are applied in malicious prosecution cases, it is the better practice to have the "probable cause" issue precede the "malice" issue. But here the court had correctly instructed the jury that legal malice may be inferred from want of probable cause and had explained the rules of law with respect to this principle as laid down in decided cases. Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708; Mitchem v. National Weaving Co., supra; Wright v. Harris, 160 N.C. 542, 76 S.E. 489. Furthermore, appellant made no exception to the issues submitted. Walker v. Walker, 238 N.C. 299, 300, 77 S.E.2d 715.
There are exceptions to the rulings of the court in sustaining objections to four questions propounded to plaintiff's witness, Mrs. Sarah Allison, by plaintiff's attorney. As to three of these questions, the record does not disclose what the answers of the witness would have been had she been permitted to testify with respect thereto. Therefore, we have no way of determining whether the rulings were prejudicial. Hyde County Board of Education v. Mann, 250 N.C. 493, 497, 109 S.E.2d 175. Mrs. Allison, an occupant of one of plaintiff's apartments, was testifying concerning noises, or absence of noises, in the house. She was asked, "The children didn't have any trouble sleeping, did they?" If permitted to testify, the witness would have answered "No." The question was clearly objectionable as leading. Furthermore, the witness had already testified, without objection, that she had heard no noises "objectionable to her or anyone else." Error, if any, is harmless.
Plaintiff contends that the court erred in permitting defendant to testify that he "didn't have any malice against Mrs. Abbitt." Plaintiff's brief refers to a portion of defendant's testimony appearing on page 23 of the record. The record does not disclose any objection made or exception taken to this testimony. Objections must be made in apt time and assignments of error must be based upon exceptions set out in the record. Jones v. Jones, 235 N.C. 390, 391, 70 S.E.2d 13; Steelman v. Benfield, 228 N.C. 651, 654, 46 S.E.2d 829.
Plaintiff objected to and moved to strike the following testimony of defendant: "Mr. Regan told Mrs. Abbitt she would have to abide by what Judge Cathey had just told her and clean her apartments up and make what changes would be necessary to do so." At a hearing of the criminal action against Mrs. Abbitt in Police Court the judge directed Mr. Bartlett, Mrs. Abbitt and her attorney, Mr. Regan, to go to an ante-room and discuss matters pertaining to the apartment house. The challenged testimony is defendant's version of a portion of that discussion. Bartlett was not eavesdropping. This testimony has a direct bearing upon the issues of "probable cause" and "malice." "No fact or circumstances in any way connected with the matter in issue, or from which any inference of the disputed fact can reasonably be drawn, ought to be excluded from the consideration of the jury." Pettiford v. Mayo, 117 N.C. 27, 28, 23 S.E. 252, 253.
Plaintiff very earnestly insists that the criminal warrant which defendant caused to be issued and under which she was arrested and tried did not charge a criminal offense and, further, that the evidence in the record is insufficient to show that she committed the acts alleged in the purported warrant. These contentions are made in connection with the refusal of the court to set aside the verdict and to the signing of the judgment. The connection is not apparent. "The refusal to set aside the verdict as being contrary to the weight of the evidence was a matter within the discretion of the court and no appeal lies therefrom." Nance v. Long, 250 N.C. 96, 97, 107 S.E.2d 926. The judgment was in accordance with the verdict. Bourne v. Edwards, 238 N.C. 261, 262, 77 S.E.2d 616. *756 The sufficiency of the warrant and evidence in the criminal action is not a proper inquiry on this appeal under the assignments of error brought forward and discussed in appellant's brief.
No error.