{
  "id": 8550670,
  "name": "LUTHER PERRY DENNING v. DAVID H. LEE",
  "name_abbreviation": "Denning v. Lee",
  "decision_date": "1978-03-07",
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  "casebody": {
    "judges": [
      "Judges Vaughn and Mitchell concur."
    ],
    "parties": [
      "LUTHER PERRY DENNING v. DAVID H. LEE"
    ],
    "opinions": [
      {
        "text": "ERWIN, Judge.\nThe plaintiff\u2019s sole assignment of error is that the trial court erred in allowing the defendant\u2019s motion for a directed verdict and in signing and entering its judgment. We agree. The grounds for the motion were that plaintiff had failed to show malice and lack of probable cause and that the warrant was defective. It is well settled that on a motion by a defendant for a directed verdict under Rule 50(a), the court must consider the evidence in the light most favorable to the plaintiff and may grant such 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, 179 S.E. 2d 396 (1971).\nTo establish a cause of action for malicious prosecution, the plaintiff must show: (1) that defendant instituted or procured the institution of a criminal prosecution against him; (2) that such was without probable cause; (3) that the prosecution was with malice; (4) that the prosecution was terminated in the plaintiff\u2019s favor. Mooney v. Mull, 216 N.C. 410, 5 S.E. 2d 122 (1939); Falkner v. Almon, 22 N.C. App. 643, 207 S.E. 2d 388 (1974). Counsel stipulated as to elements (1) and (4), and those elements need not detain us further.\nIn Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446 (1931), Chief Justice Stacy stated:\n\u201cEvidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest, e.g., to obtain possession of property, or to enforce collection of a debt, and the like, is admissible, both to show the absence of probable cause and to create an inference of malice, and such evidence is sufficient to establish a prima facie want of probable cause (citations omitted).\nThe reason for holding that proof of a collateral purpose is sufficient to make out a prima facie want of probable cause, is based upon the hypothesis that a person, bent on accomplishing some ulterior motive, will act upon much less convincing evidence than one whose only desire is to promote the public good.\u201d 201 N.C. at 95.\nSee also Cook v. Lanier, 267 N.C. 166, 147 S.E. 2d 910 (1966).\nThe plaintiff called the defendant, David H. Lee, and his sister, Joyce Harris, to testify, and portions of their testimony are set out below:\nDavid H. Lee\u2014\nQ. \u201cNow, when did your sister tell you to take out the warrant?\u201d\nA. \u201cWell, when Luther Perry Denning made the comment to me and the Mary Bryan Estate that he won\u2019t paying nary damn cent on the hospital or doctor ... so then we proceeded to take out the warrant.\u201d\nJoyce Harris\u2014\nQ. \u201cWhat motivated you to tell your brother to take out a warrant?\u201d\nA. \u201cBecause he had told me that he had heard Luther Perry say that he wasn\u2019t going to pay a damn cent of hospital or for the doctor\u2019s or emergency room or anything like that and I said I think Luther Perry should pay some how or another.\u201d\nQ. \u201cAnd is this the reason you said, take out a warrant, so that it could help you in obtaining payments of medical bills?\u201d\nA. \u201cYes sir.\u201d\nThere was also evidence that the defendant had become quite agitated over the boundary dispute. Further, more than two months elapsed following the injuries to Earl Harris before the defendant sought to bring criminal charges. It appears to us that there was strong evidence of a \u201ccollateral purpose\u201d in defendant\u2019s bringing the criminal prosecution, creating a \u201cprima facie want of probable cause.\u201d\nIn Cook v. Lanier, supra, Chief Justice Parker observed:\n\u201cOf course a prima facie showing does not necessarily mean that the plaintiff is entitled to recover. It is sufficient to carry the case to the jury (emphasis added and citation omitted), and it is for the jury to say whether or not the crucial and necessary facts have been established.\u201d (Citations omitted.) 267 N.C. at 171.\nNor do we agree with the defendant\u2019s contention that the warrant was \u201cdefective\u201d and therefore could not be made the basis of a malicious prosecution action. The defendant cites Moser v. Fulk, 237 N.C. 302, 74 S.E. 2d 729 (1953) in support of this argument. However, that case involved a warrant void on its face. Here the warrant was sufficient to charge the plaintiff with assault under G.S. 14-33(b)(l).\nWe hold that the plaintiff made a sufficient showing to carry his case to the jury and that it was error to grant the defendant\u2019s motion for a directed verdict.\nReversed and remanded.\nJudges Vaughn and Mitchell concur.",
        "type": "majority",
        "author": "ERWIN, Judge."
      }
    ],
    "attorneys": [
      "Doffermyre & Rizzo, by L. Randolph Doffermyre III, for plaintiff appellant.",
      "Stewart and Hayes, by Gerald W. Hayes, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LUTHER PERRY DENNING v. DAVID H. LEE\nNo. 7711SC331\n(Filed 7 March 1978)\n1. Malicious Prosecution \u00a7 1\u2014 elements of malicious prosecution\nTo establish a cause of action for malicious prosecution, the plaintiff must show: (1) that defendant instituted or procured the institution of a criminal prosecution against him; (2) that such was without probable cause; (3) that the prosecution was with malice; and (4) that the prosecution was terminated in the plaintiff\u2019s favor.\n2. Malicious Prosecution \u00a7 13.2\u2014 evidence of collateral purpose \u2014 malice\u2014absence of probable cause\nPlaintiff\u2019s evidence was sufficient for the jury in a malicious prosecution action where his evidence tended to show that defendant obtained a warrant charging plaintiff with assault on defendant\u2019s nephew, the assault charge was dismissed when defendant twice failed to appear in court, and defendant obtained the warrant against plaintiff in an effort to force plaintiff to pay medical expenses incurred by defendant\u2019s nephew as a result of injuries received while on plaintiff\u2019s property, the evidence of defendant\u2019s \u201ccollateral purpose\u201d in prosecuting plaintiff being sufficient for the jury to find malice and the absence of probable cause.\nAPPEAL by plaintiff from Gavin, Judge. Judgment entered 2 February 1977 in Superior Court, Harnett County. Heard in the Court of Appeals 8 February 1978.\nThis is a malicious prosecution action. The defendant answered plaintiff\u2019s complaint, denying liability. At the trial, plaintiff\u2019s evidence tended to show that: plaintiff is co-administrator of the estate of Mary C. Bryan; on or about the date in question the estate owned certain real property which adjoined real property owned by defendant; plaintiff\u2019s son lived with his wife and child on the Mary C. Bryan property; a path led from a road across the Bryan estate to defendant\u2019s property; because traffic on the path bothered plaintiff\u2019s son, plaintiff on or about 27 April 1975 erected eight poles across the path; at a different point on the path, plaintiff also erected two poles connected by a chain and sign; on about the same date, Earl Harris, age 15, drove a motorbike down the path, collided with the chain, and sustained injuries; at some time after this accident, plaintiff told defendant that he would not pay any of the medical bills associated with the injuries to Earl Harris; and a controversy developed over the boundary location between the Bryan estate property and defendant\u2019s property.\nThe plaintiff\u2019s evidence further tended to show that: on 3 July 1975, upon the advice of his sister, Joyce Harris, defendant went to the magistrate\u2019s office and obtained a warrant charging plaintiff with assault, on which the plaintiff was arrested; on 18 July 1975 and again on 1 August 1975, defendant failed to appear in court on the warrant, and the criminal proceeding was dismissed by the State. At the close of plaintiff\u2019s evidence, defendant moved for a directed verdict. From an order allowing defendant\u2019s motion, plaintiff appeals.\nDoffermyre & Rizzo, by L. Randolph Doffermyre III, for plaintiff appellant.\nStewart and Hayes, by Gerald W. Hayes, Jr., for defendant appellee."
  },
  "file_name": "0565-01",
  "first_page_order": 593,
  "last_page_order": 597
}