#### HURD SMITH v. CHARLIE SOMERS, GORDON FRANKLIN, E. E. HODGES, and O. L. SLAYTON.

(Filed 2 March, 1938.)

Process § 15: Principal and Agent § 10—

Evidence that defendant copartners authorized and ratified the act of their clerk in swearing out a warrant for plaintiff for the purpose of coercing him to pay a civil debt owed by plaintiff to the firm, held sufficient to be submitted to the jury.

Appeal by plaintiff from Bivens, J., at November Term, 1937, of BocxiNgham. Beversed.

This is an action brought by plaintiff against the defendants as joint tort-feasors for malicious prosecution and abuse of process.

The defendants Gordon Franklin, E. E. Hodges, and O. L. Slayton were partners on 23 November, 1936, doing business under the name of Franklin Grocery Company. Charlie Somers was a clerk in the store.

“That on 23 November, 1936, plaintiff was indebted to the Franklin Grocery Company in the sum of $6.76, which he had been unable to pay because of expenses which he had to meet incident to the illness and death of his baby.

“That on 23 November, 1936, Charlie Somers went before J. H. Stultz, justice of the peace and clerk of the recorder’s court of Leaksville Township, and swore out a warrant against Hurd Smith charging that he did ‘unlawfully, willfully and feloniously obtain goods from the *210Franklin Grocery Company by false pretense by stating to tbem tbat be bad a job and would pay for same when be received pay on tbe week-end/ Tbat under said warrant plaintiff was arrested on 24 November, 1936, by Monroe Stultz, deputy sheriff, and was beld in custody until be secured bond in tbe amount of $300.00.

“Tbat on 27 November, 1936, wben tbe case of ‘State v. Hurd Smith,’ charging false pretense, came on for trial in tbe recorder’s court of Leaksville Township tbe solicitor of said court, Mr. Harvey Fitts, announced to tbe court tbat tbe State could not make out a case against Hurd Smith and tbat tbe State would take a nol. pros. "Whereupon tbe court instructed tbe clerk to enter a nol. pros, and tbe case was dismissed.

“Tbat in swearing out said warrant against Hurd Smith, Charlie Somers was acting as tbe agent and under tbe direction of defendants Gordon Franklin, E. E. Hodges, and O. L. Slayton.

“Tbat tbe defendants caused said warrant to be issued and plaintiff to be arrested under said criminal process for tbe purpose of coercing him into paying a civil debt which be was due tbe Franklin Grocery Company and not because plaintiff bad violated any criminal law. Tbat tbe purpose of defendants was not to bring an offender to justice, because plaintiff bad violated no criminal law and was not guilty of any false pretense in securing tbe credit for $6.76, but tbe sole purpose of defendants in securing tbe warrant for Hurd Smith was to force plaintiff to pay a civil debt to tbe Franklin Grocery Company, and tbat said warrant was sworn out without any probable cause whatever.

“Tbat tbe action of defendants was a malicious prosecution and a malicious abuse of tbe criminal process of tbe State of North Carolina. Tbat said abuse of process and malicious prosecution greatly humiliated tbe plaintiff, caused him great embarrassment and much mental anguish. Tbat plaintiff bad never been arrested before and said arrest greatly injured and damaged bis character and standing in the community. Tbat by said abuse of process plaintiff has been actually damaged $3,000.

“Tbat defendants were angry with plaintiff because be bad been unable to pay tbe sum of $6.76, and tbat their action in having a warrant issued for him was wanton, willful, and malicious and in utter disregard of tbe constitutional rights of this plaintiff as a citizen of North Carolina. Tbat for said willful, malicious, and intentional violation of tbe rights of plaintiff be is entitled to recover punitive damages in tbe sum of $2,000.

“Wherefore, plaintiff prays judgment against tbe defendants, jointly and severally, for $3,000 compensatory damages, for $2,000 punitive damages, for tbe cost of this action, and for such other and further relief as to tbe court may seem just and proper.”

*211Tbe defendants denied tbe „material allegations of tbe complaint.

At tbe close of plaintiff’s evidence, tbe defendants in tbe court below made a motion for judgment as in case of nonsuit. Tbe court below granted tbe motion as to all tbe defendants except Somers. Tbe plaintiff excepted. Upon tbe ruling of tbe court tbe plaintiff took a voluntary nonsuit as to Somers and made exceptions and assignments of error and appealed to tbe Supreme Court.

Sharp & Sharp for plaintiff.

Glidewell & Glidewell and J. Hampton Price for defendants.

Per Curiam.

Tbe law as to wbat is malicious prosecution and abuse of process is fully set forth in Ledford v. Smith, 212 N. C., 447.

Tbe sole question on tbis appeal is: Was tbe evidence in tbe court below sufficient to be submitted to tbe jury as to all tbe defendants? We tbink so. It is taken in tbe light most favorable to plaintiff. We think that by analogy tbis case is somewhat similar to Colvin v. Lumber Co., 198 N. C., 776. We will not set forth tbe evidence in detail as tbe case goes back to be tried in tbe court below. Tbe probative force of tbe evidence, including tbe circumstantial evidence, was not strong, but sufficient as to authorization and ratification to be submitted to tbe jury as to all of tbe defendants.

Por tbe reason given, tbe judgment of tbe court below is

Reversed.