Lizzie KUYKENDALL
v.
W.T. TURNER and R.T. Booth.
No. 8218SC424.
Court of Appeals of North Carolina.
April 19, 1983.*718 McNairy, Clifford & Clendenin by Michael R. Nash and Locke T. Clifford, Greensboro, for plaintiff-appellant.
Nichols, Caffrey, Hill, Evans & Murrelle by Joseph R. Beatty, Greensboro, for defendant-appellees.
ARNOLD, Judge.
The primary question on this appeal is if it was proper for the trial judge to enter directed verdicts on the trespass and punitive damage issues at the close of the plaintiff's evidence and on the assault and battery issues while the jury was deliberating.
I. Directed verdict standard
In reviewing the grant of a directed verdict on appeal, we "must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff." Kelly v. Harvester Co., 278 N.C. 153, 158, 179 S.E.2d 396, 398 (1971) (emphasis in the original). "[T]he evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor." Snow v. Power Co., 297 N.C. 591, 596, 256 S.E.2d 227, 231 (1979); Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973). See generally W. Shuford, N.C. Civil Practice and Procedure § 50-5 (2d ed. 1981) (discusses the test to be used in evaluating a directed verdict motion).
Before determining if the entry of directed verdicts was proper here, we note that the trial judge acted in accordance with G.S. 1A-1, Rule 50(a) when he granted directed verdicts on the assault and battery issues while the jury was deliberating.
As the rule states, "The order granting a motion for a directed verdict shall be effective without any assent of the jury." (emphasis added). In Odell v. Lipscomb, 12 N.C.App. 318, 183 S.E.2d 299 (1971), a case in which the trial judge granted directed verdicts within ten days after the jury failed to reach a verdict, this Court stated that in deciding the directed verdict question "the court should give no consideration to the fact that the jury may have failed to reach a verdict, but should consider only the evidence in the case." 12 N.C.App. at 321, 183 S.E.2d at 301. Thus, Rule 50(a) eliminates the useless act of asking for jury assent. 5A Moore's Federal Practice ¶ 50.02[3] (2d ed. 1982).
We are aware that the better practice may be for the trial judge to refrain from directing a verdict, even when he could, in order to expedite a final determination on appeal. That is, if the grant of a directed verdict is reversed, a new trial is required. But if the case goes to the jury, the trial judge can grant a judgment notwithstanding the verdict if he believes the verdict to be erroneous or the court on appeal can reverse and reinstate the jury verdict without a new trial if it finds that the trial court erred. See C. Wright & A. Miller, Federal Practice and Procedure § 2533 (1971). However, the trial judge did not violate Rule 50(a) in this case.
We now consider if the evidence in support of the four issues in this case was sufficient to withstand a directed verdict motion.
II. Trespass
A trespass to real property requires three elements: 1. Possession by the plaintiff when the trespass was committed, 2. An unauthorized entry by the defendant, and 3. Damage to the plaintiff from the trespass. Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952).
The plaintiff was clearly in possession of her home when the officers entered and has arguably presented enough evidence to show damage from their entry. What this issue turns on is if the entry of the defendants was unauthorized.
*719 G.S. 15A-401(e)(1) outlines the situations when a law enforcement officer may enter on private premises to arrest someone. Three requirements must be met. The officer must possess a warrant for the arrest of a person, he must have reasonable cause to believe that the person to be arrested is present, and he has given, or made a reasonable effort to give, notice of his authority and purpose to an occupant of the premises.
When considering the evidence in the light most favorable to the plaintiff, we find that the entry by the defendants here was unauthorized under G.S. 15A-401(e)(1).
The plaintiff's evidence shows that she never saw the warrant and that Booth would not let her see it. The denial by the plaintiff and her daughter that Wilson was at the house is sufficient to negate the reasonableness of the defendants' belief that he was present. Finally, even though the authority of the defendants was clear, the plaintiff's evidence shows that Turner entered the house without announcing his purpose. Thus, it was improper to direct a verdict for the defendants on the trespass issue.
III. Punitive damages
In North Carolina, punitive damages are recoverable in assault and battery cases only when the assault and battery is accompanied by an element of aggravation like malice. North Carolina courts will not imply or impute malice, but instead require a showing of actual or express malice, "that is, a showing of a sense of personal ill will toward the plaintiff which activated or incited a defendant to commit the alleged assault and battery." Shugar v. Guill, 304 N.C. 332, 338-39, 283 S.E.2d 507, 511 (1981).
The purpose of punitive damages is not to compensate a plaintiff for personal injuries. Instead, they are awarded to punish the defendant's conduct. E. Hightower, N.C. Law of Damages § 4-1 (1981).
Punitive damages are awarded only in cases where a plaintiff also recovers nominal or compensatory damages. Clemmons v. Insurance Co., 274 N.C. 416, 163 S.E.2d 761 (1968). The jury has discretion on whether to award punitive damages even though the trial judge decides if there is evidence to be submitted to the jury that would justify their award. Ervin, Punitive Damages in North Carolina, 59 N.C.L.Rev. 1255, 1257-58 (1981).
We cannot say as a matter of law that the defendants did not show "personal ill will" toward the plaintiff when they searched her house. The plaintiff's evidence showed that they slammed her around in the hall, shook her "like a rag doll," and used threatening and abusive language. When considered in the light most favorable to the plaintiff and resolving all conflicts in the evidence in her favor, the punitive damages issue should have gone to the jury.
IV. Assault and battery
Our Supreme Court recently reiterated that North Carolina follows the common law definitions of assault and battery. According to Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981),
An assault is an offer to show violence to another without striking him, and a battery is the carrying of the threat into effect by the infliction of a blow. The interest protected by the action for battery is freedom from intentional and unpermitted contact with one's person; the interest protected by the action for assault is freedom from apprehension of a harmful or offensive contact with one's person.
302 N.C. at 444-45, 276 S.E.2d at 330. See also Restatement (Second) of Torts §§ 13 and 21 (1965); W. Prosser, Handbook of the Law of Torts §§ 9 and 10 (4th ed. 1971) (definitions and interests to be protected).
The evidence considered in the light most favorable to the plaintiff shows that this issue should have gone to the jury. Slamming her against the walls and shaking her could constitute a battery and there is some evidence of an apprehension of unpermitted contact. Even the defendants admit that Turner grabbed the plaintiff's wrists.
*720 We find Todd v. Creech, 23 N.C.App. 537, 209 S.E.2d 293, cert. denied, 286 N.C. 341, 211 S.E.2d 216 (1974), to be helpful. In granting a new trial in an assault and battery case against a law enforcement officer, the court stated, "[W]hen there is substantial evidence of unusual force, it is for the jury to decide whether the officer acted as a reasonable and prudent person or whether he acted arbitrarily and maliciously." 23 N.C.App. at 539, 209 S.E.2d at 295. Todd is persuasive even though the plaintiff there sued an officer who sought to arrest him while the plaintiff here is suing officers who sought to search her house to arrest another person.
We also note that G.S. 15A-401(d), which outlines when force may be used in an arrest, states: "Nothing in this subdivision constitutes a justification for willful, malicious or criminally negligent conduct by any person which injures or endangers any person or property, nor shall it be construed to excuse or justify the use of unreasonable or excessive force." The plaintiff's evidence presents questions on if the defendants' conduct was willful or malicious, whether she was injured, and if the force used was unreasonable.
Although we hold that the jury should have been allowed to reach a verdict on the issues submitted by the plaintiff here, we express no opinion on the merits of the plaintiff's claims.
V. Jury Instructions
The plaintiff argues that the trial judge's jury instructions on assault and battery at the end of all the evidence and when the jury asked for a clarifying instruction were erroneous. This contention is irrelevant because the jury was not allowed to reach a verdict. As a result, any error in the instructions was harmless.
Because we find that directed verdicts were improperly entered on the issues in this case, it is unnecessary to discuss the denial of plaintiff's motion for a mistrial and a new trial.
Reversed and remanded for a new trial.
BECTON and PHILLIPS, JJ., concur.