Katherine E. Kivett SAMONS
v.
Doctor Assad MEYMANDI, Doctor Herbert W. Vick and Frank Ceruzzi.
No. 7012SC494.
Court of Appeals of North Carolina.
October 21, 1970. Certiorari Denied January 5, 1971.*211 Downing, Downing & David by Edward J. David, Fayetteville, for plaintiff appellant and plaintiff appellee.
Nance, Collier, Singleton, Kirkman & Herndon by James R. Nance and Butler, High & Baer by Ervin I. Baer, Fayetteville, for defendant appellant Meymandi.
Anderson, Nimocks & Broadfoot, by Hal W. Broadfoot, Fayetteville, for defendant appellee Ceruzzi.
McCoy, Weaver, Wiggins, Cleveland & Raper, by Richard M. Wiggins and Marion C. George, Jr., Fayetteville, for defendant appellee Vick.
Certiorari Denied by Supreme Court January 5, 1971.
CAMPBELL, Judge.
Plaintiff's first assignment of error is the granting of the directed verdict in favor of the defendants Vick and Ceruzzi. Plaintiff has specifically abandoned the claim of abuse of process and asserts only the claim of false imprisonment. In Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965), it is stated:
"`A cause of action for false arrest or false imprisonment is based upon the deprivation of one's liberty without legal process. * * *'"
*212 Here the plaintiff was deprived of her liberty on two occasions. The first time was pursuant to the order under which the plaintiff was taken into custody and carried to the Mental Health Center for an examination. The order under which this was done was issued by the Assistant Clerk of Superior Court under the powers granted the Clerk by statute. G.S. § 122-62 provides:
"Clerk to issue an order for examination.When an affidavit and request for examination of an alleged mentally ill person or alleged inebriate has been made, or when the clerk of superior court has other valid knowledge of the facts of the case to cause an examination to be made, he shall direct two qualified physicians who are not directly involved with the care and treatment of the patient in the hospital to which the person may be hospitalized, to examine the alleged mentally ill person or alleged inebriate. The clerk is authorized to order the alleged mentally ill person or inebriate to submit to such examination, and it shall be the duty of the sheriff or other law enforcement officer to see that this order is enforced. * * *"
The record in this case shows that the Assistant Clerk issued the order on 18 March 1969 pursuant to which the plaintiff was taken into custody for the purpose of an examination. The statute permits the Clerk to issue the order upon his own knowledge, and the record shows that the Assistant Clerk did have sufficient knowledge and did issue the order. The fact that the defendants Vick and Ceruzzi had not made proper affidavits or examinations had nothing to do with the issuance of this particular order. Thus, on this occasion, the plaintiff was not deprived of liberty without legal process as the order under which she was taken into custody on this occasion was a legal process. The directed verdict in favor of defendants Vick and Ceruzzi was granted properly.
Plaintiff next assigns as error the action of the trial judge in setting aside the verdict in regard to the compensatory and punitive damages. The judgment of the trial judge recited that he was acting under the discretionary authority granted in Rule 59 of the North Carolina Rules of Civil Procedure. Rule 59 provides:
"(a) Grounds.A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:
* * * * * *
(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;
(7) Insufficiency of evidence to justify the verdict or that the verdict is contrary to law;
* * *"
The trial judge has discretionary power to set aside an award of damages if he believes that the damages were excessive and given under the influence of passion or prejudice, or if the evidence is insufficient to justify the verdict. A ruling that is within the discretion of a trial judge may not be set aside except upon a showing of abuse of discretion, and there is no showing of abuse of discretion under the facts of this case.
The defendant Meymandi on his appeal presents the question as to the sufficiency of the evidence to allow the issue of punitive damages to be submitted to the jury. "`Punitive damages may be awarded only where the wrong is done wilfully or under circumstances of rudeness, oppression or in a manner which evinces a reckless and wanton disregard of the litigant's rights.'" Van Leuven v. Akers Motor Lines, 261 N.C. 539, 135 S.E.2d 640 (1964). We are of the opinion that the evidence in this case did not justify the submission of the punitive damage issue to the jury. The error in submitting this issue to the *213 jury was cured however, when the trial judge set the verdict aside.
The defendant Meymandi also presents the question as to whether the first issue was properly submitted to the jury. He contends that the emergency proceedings instituted by him constituted a legal process and that therefore the plaintiff was not deprived of her liberty without legal process. He contends that the statute need not be strictly complied with. He asserts that the statute is ambiguous and was intended only to authenticate the signature of the doctor signing. The pertinent part of the statute reads as follows:
"* * * The physician's statement shall be sworn to before a person authorized to take acknowledgments or witnessed by a peace officer, and shall constitute authority, without any court action, for the sheriff or any other peace officer to take custody of the alleged homicidal or suicidal person and transport him immediately to the appropriate State hospital or other suitable place of detention. * * *" G.S. § 122-59.
We are of the opinion that the statute is not ambiguous; that it is sufficiently broad to take care of any emergency situation and that the Legislature meant exactly what it says. Defendant Meymandi stated that he did not comply with the statute. He stated, "I presume I signed it in front of her, but I don't recall. I did not take an oath before her at the time I signed it; as I indicated earlier, this is not a customary thing to do every time you sign a form or appear before your secretary, to be sworn in; it is literally impracticable." Since the statute was not complied with, plaintiff was deprived of her liberty without legal process.
Taking a person without the intervention of any court proceeding and simply upon a physician's statement to a State Hospital for examination and treatment is a drastic procedure. Handling mentally ill persons has frequently been by means of drastic procedures. At common law there was a right to detain a mentally ill person in order to protect such person from self-injury, and the public from injury at the hands of such deranged person. This doubtless accounts for the action of the Legislature in authorizing such an emergency commitment. The action of the Legislature supplanted the common law rule. As stated in McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956),
"But the General Assembly is the policymaking agency of our government, and when it elects to legislate in respect to the subject matter of any common law rule, the statute supplants the common law rule and becomes the public policy of the State in respect to that particular matter."
There being a statute which provides for a drastic remedy, it is encumbent upon all that use it to do so with care and exactness, even though the user may think it "impractical".
The judgment of Judge Hobgood failed to grant a new trial as provided for in Rule 59(d) after setting aside the verdict, although in the judgment he recited he was acting on his own initiative pursuant to Rule 59(d). The plaintiff is entitled to a new trial on the issue of "What compensatory damages, if any, is the plaintiff entitled to recover?" To that end, this case is
Remanded.
BRITT and VAUGHN, JJ., concur.