Alexander v. Brown , 236 N.C. 212 ( 1952 )

72 S.E.2d 522 (1952) 236 N.C. 212

ALEXANDER
v.
BROWN et al.

No. 110.

Supreme Court of North Carolina.

September 24, 1952.

J. W. Haynes, W. K. McLean, Roy A. Taylor, Asheville, for defendants-appellants.

Guy Weaver, Asheville, for plaintiff-appellee.

ERVIN, Justice.

Since the deprivation of personal liberty suffered by a plaintiff and all circumstances of aggravation attending it constitute elements of damage in an action for malicious prosecution, the present plaintiff's version of the facts accompanying his arrest and imprisonment is clearly germane to his second cause of action. 54 C.J.S., Malicious Prosecution, section 112.

G.S. § 1-163 provides that "The judge * * * may * * * amend any pleading * * * by inserting * * * allegations material to the case", and G.S. § 1-152 specifies that "The judge may likewise, in his discretion, * * * allow an * * * act to be done, after the time limited, or * * * may enlarge the time." These statutory provisions conferred upon Judge Bobbitt the discretionary power to extend the time for filing the amendment to the complaint to the date specified in his order. Smith v. New York Life Insurance Company, 208 N.C. 99, 179 S.E. 457.

The defendants insist with much earnestness and eloquence that Judge Bobbitt erred in permitting the plaintiff to file a pleading containing the first eight paragraphs of the amendment and in denying their motion to strike such paragraphs from the amendment even if he did possess discretionary power to permit the plaintiff to file an amendment to the complaint after the time limited in Judge Rudisill's order. They advance these arguments to support their position: That when he recast his complaint, the plaintiff incorporated his version of the facts attending his arrest and imprisonment in his second cause of action by appropriate reference to the allegations of his first cause of action; that Judge Rudisill adjudged as a matter of law that the plaintiff's version of these facts was immaterial and irrelevant to his second cause of action and prejudicial to the defendant Lawrence E. Brown, and struck out the first paragraph of the plaintiff's second cause of action for that reason; that this ruling of Judge Rudisill, whether sound or unsound, became binding on the parties as "the law of the case" by the plaintiff's failure to have it reviewed on appeal; that Judge Bobbitt's action in permitting the plaintiff to file a pleading containing the first eight paragraphs of the amendment and in refusing to strike such paragraphs from the amendment was tantamount to a reversal of Judge Rudisill's ruling because the first eight paragraphs of the amendment set out in specific detail the plaintiff's version of the facts accompanying his arrest and imprisonment; and that consequently Judge Bobbitt's action is invalidated by the rule applied in Tallassee Power Company v. Peacock, 197 N.C. 735, 150 S.E. 510, that one superior court judge cannot review the decision of another superior court judge upon a matter of law or legal inference.

The position of the defendants is rendered untenable by the salutary principle that where a judicial ruling is susceptible of two interpretations, the court will adopt the one which makes it harmonize with the law properly applicable to the case. In re Summers, 79 Ind.App. 108, 137 N.E. 291; 49 C.J.S., Judgments, § 436.

While the record reveals that the defendants moved to strike the first paragraph of the plaintiff's second cause of action on the ground that the allegations thereby "made a part of said cause of action by reiteration * * * are immaterial, irrelevant, and prejudicial to the defendant Lawrence E. Brown," it does not compel the conclusion that Judge Rudisill made the erroneous adjudication that the ground assigned by the defendants for their motion was valid in law when he struck out "all of paragraph one of the second cause of action" without stating any reason whatever for his ruling. In entering his order, Judge Rudisill heeded the sage advice which the Earl of Mansfield is reputed to have given those who wear the ermine: "Consider what you think justice requires, and decide accordingly. But never give your reasons; for your judgment will probably be right, but your reasons will certainly be wrong."

When all is said, the order is susceptible of the construction that Judge Rudisill struck out paragraph one of the second cause of action merely because the plaintiff's attempt to incorporate his version of the facts attending his arrest and imprisonment in his second cause of action by reference to the allegations of his first cause of action contravened the rule of court which provides that "Every pleading containing two or more causes of action shall, in each, set out all the facts upon which it rests, and shall not, by reference to others, incorporate in itself any of the allegations in them, except that exhibits, by marks or numbers, may be referred to without reciting their contents, when attached thereto." Supreme Court Rule No. 20(2), General Statutes, Vol. 4, Appendix 1; Cherry v. Walker, 232 N.C. 725, 62 S.E.2d 329; King v. Coley, 229 N.C. 258, 49 S.E.2d 648; McIntosh on North Carolina Practice and Procedure in Civil Cases, section 433. This interpretation harmonizes the order with the legal principle that the deprivation of personal liberty suffered by the plaintiff and all circumstances of aggravation attending it constitute elements of damage in the action for malicious prosecution. It is likewise consistent with the inclusion in the order of the provision granting the plaintiff leave to amend his complaint. This provision indicates that Judge Rudisill contemplated that the plaintiff would revamp his second cause of action so as to conform the same to the rule of court.

Under this view, Judge Bobbitt's order implements rather than repudiates Judge Rudisill's ruling. This being true, Judge Bobbitt's order is affirmed.