#### L. S. FORD v. W. J. McANALLY.

(Filed 16 November, 1921.)

1. Evidence — Pleadings—Nonsuit.

' Tbe pleadings will be liberally construed and tbe evidence taken in tbe light most favorable to plaintiff, on defendant’s motion for judgment thereon.

2. Malicious Prosecution — Evidence—Punitive Damages.

Tbe requisites of maliciousness, wantonness, and recklessness, and want of probable cause, in order to recover punitive damages in an action for malicious prosecution, is sufficiently evidenced when tbe testimony tends to show that tbe defendant caused tbe plaintiff to be arrested, cursed him, bad policemen to arrest and incarcerate him without a warrant, and appeared before the committing magistrate and participated in tbe prosecution, which resulted in acquittal, taxing tbe plaintiff, as prosecutor, with tbe cost.

3. Damages — Punitive Damages — Public Policy.

Punitive damages are allowed in proper cases on tbe ground of public policy for example’s sake, and given to the plaintiff because it is awarded in his suit.

4. Same — Verdict—Discretion of Jury — Excessive or Arbitrary — Appeal and Error.

Where punitive damages are allowable, their award is in the sound discretion of the jury, and -the amount so ascertained will not be disturbed on appeal, unless excessively disproportionate to tbe circumstances of contumely and indignity present in each particular case, and in the instant case the verdict therefor is not regarded as being arbitrarily or harshly rendered, upon tbe facts appearing of record.

Appeal by defendant from Finley, J., at April Term, 1921, of Guil-eoed.

Civil action to recover damages for an alleged assault, false arrest and malicious prosecution.

Upon denial of liability, and issues joined, tbe jury returned tbe following verdict:

“1. Did tbe defendant assault tbe plaintiff as alleged in tbe complaint ? Answer: ‘Yes.’

“2. If so, wbat damage is tbe plaintiff entitled to recover of tbe defendant? Answer: ‘$25.’

“3. Did tbe defendant cause tbe arrest and prosecution of tbe plaintiff as alleged? Answer: ‘Yes.’

“4. If so, was tbe arrest without probable cause? Answer: ‘Yes.’

“5. If so, was tbe arrest malicious? Answer: ‘Yes.’

“6. Wbat amount, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer:‘$3,019.’”

*420There was a judgment entered on the verdict in favor of the plaintiff, from which the defendant appealed.

J. Allen Austin and JoJm A. Barringer for plaintiff.

W. P. Byrmm, S. S. Alderman and G. G. Barnhart for defendant.

Stacy, J.

There is no exception or question presented on the initial cause of action arising out of the alleged assault. Defendant concedes that the plaintiff is entitled to judgment on the first two issues, but contends that the allegations of the complaint and the evidence adduced on the hearing were not sufficient to warrant the verdict on the remaining issues, or those relating to the second cause of action.

Giving the complaint a liberal construction, as we are required to do under C. S., 535, and considering the evidence in its most favorable light for tho plaintiff, the accepted position on a motion to nonsuit, we think the verdict and judgment should be upheld.

There is evidence on the record tending to show that, after the assault and without any warrant or other legal process, the plaintiff was arrested at the instance of the defendant and taken by two policemen to the police station in the city of High Point. The defendant followed the officers and made application, at the police station, for a peace warrant and left instructions that the plaintiff be locked up, which was done, and he remained in jail from about 9 a.m. until approximately 7 p.m., or practically the entire day; The evidence also discloses that the defendant signed the warrant in blank, which was afterwards filled out by one of the officers, charging L. S. Ford, plaintiff herein, with an assault with a deadly weapon, to wit, a pistol. At the trial on the following morning in the recorder’s court Ford was acquitted and the prosecuting witness, defendant herein, was taxed with the cost.

The defendant denied that the arrest was made at his instance, or that he gave any instructions to have the plaintiff committed to jail under the warrant; but, during the course of his examination, he testified as follows:

> “At the trial I asked the court to tax me with the costs. I did that because I was sorry for the man. The reason for my sympathy was just because I thought that he was feeble, hardly a responsible man. It was after I made the request that the court released him. I was the least bit angry, when I was down there at the gallery. Yes, sir, I will say I was angry. I was angry enough to fight, but I didn’t propose to fight him.”

It is further contended by the defendant that, under authority of Oakley v. Tate, 118 N. C., 361, he should not be held responsible for the prosecution because of the officer’s error in filling out the blank warrant, *421charging tbe present plaintiff witb an assault, wben application bad been made for a peace warrant only. But it appears unmistakably tbat tbe plaintiff was arrested without any warrant at all; tbat Dr. McAnally was present at tbe trial on tbe following morning, and tbe jury have found tbat be was there aiding in tbe prosecution. It could hardly be said tbat be was ignorant of what was going on. At any rate, there was no request to correct tbe error and change tbe warrant. Indeed, it would seem tbat by conduct, at least, tbe defendant adopted tbe warrant and ratified what tbe officer bad done. Tbe jury evidently took this view of tbe matter, as it was submitted to them by tbe court, and they have found, in answer to tbe third issue, tbat tbe defendant caused tbe arrest and prosecution of the plaintiff.

Tbe defendant objected to tbe submission of tbe fifth and sixth issues and contended tbat there was no evidence in tbe case to justify an award of punitive damages, citing Lewis v. Clegg, 120 N. C., 292. But upon tbe attendant facts and surrounding circumstances, tbe jury have found tbat tbe defendant acted wrongfully and tbat be was actuated by malice. Indeed, be himself testified: “As to Mr. Ford’s statement on tbe witness stand tbat I told tbe officers to arrest him, what was said was tbat I told them I wanted a peace warrant for him. I did, as be stated, ask tbe officers at tbe gallery and at tbe lockup to lock him up, tbat be was crazy. I believe I did say that tbe man was crazy. I think tbat today. I didn’t curse him. I expressed an opinion. I said ‘get out of tbe way, you damned fool.’ Tbat is tbe only thing I said, or any kind of profanity.”

We think, upon tbe whole case, bis Honor correctly submitted tbe issues to tbe jury.

Punitive damages, sometimes called smart money, are allowed in cases where tbe injury is inflicted in a malicious, wanton and reckless manner. Tbe defendant’s conduct must have been actually malicious or wanton, displaying a spirit of mischief towards tbe plaintiff, or of reckless and criminal indifference to bis rights. Wben these elements are present, damages commensurate witb tbe injury may be allowed by way of punishment to tbe defendant. But these damages are awarded on tbe grounds of public policy, for example’s sake, and not because tbe plaintiff has a right to tbe money, but it goes to him merely because it is assessed in bis suit. Both tbe awarding of punitive damages and tbe amount to bé allowed, if any, rest in tbe sound discretion of tbe jury. Cobb v. R. R., 115 N. C., 132; Fields v. Bynum, 156 N. C., 413; Hayes v. R. R., 141 N. C., 199; Smithwick v. Ward, 52 N. C., 64. However, tbe amount of punitive damages, while resting in tbe sound discretion of tbe jury, may not be excessively disproportionate to tbe cir*422cumstances of contumely and indignity present in eacb particular case. Gilreath v. Allen, 32 N. C., 67; Sloan v. Edwards, 61 Md., 100; Bernheimer v. Becker, 3 L. R. A. (N. S.), 221.

In tbe case before us it would seem tbat tbe jury bave been liberal in tbeir award, but we cannot say tbe amount is disproportionately excessive. Tbe defendant is a physician, and be admitted tbat be was angry and knew tbe plaintiff was a feeble man. In fact, be stated tbat be tbougbt be was crazy. Tbe jury evidently concluded tbat, under these circumstances, tbe defendant, with bis superior advantages, should bave been more charitable in bis conduct toward tbe plaintiff, a man in an unequal and less fortunate condition. It is unbecoming in tbe strong to deal-oppressively with tbe weak; and tbe jury evidently tbougbt tbe present defendant should be taxed with a substantial sum in tbe form of punitive damages, or smart money. We cannot say they bave acted arbitrarily or harshly. It does not so appear on tbe record.

Tbe remaining exceptions are apparently without special merit; and, upon a careful consideration of tbe whole case, we bave found no sufficient reason for disturbing .the result of tbe trial.

No error.