Falkner v. Almon , 22 N.C. App. 643 ( 1974 )

207 S.E.2d 388 (1974) 22 N.C. App. 643

Peggy FALKNER
v.
Robert F. ALMON.

No. 7419SC452.

Court of Appeals of North Carolina.

August 7, 1974.

Grant & Grant, by Wesley B. Grant, Concord, for plaintiff.

Webster S. Medlin, Concord, for defendant.

BROCK, Chief Judge.

To establish a cause of action for malicious prosecution, plaintiff had the burden of proof to show: (1) that defendant instituted or procured the institution of a criminal proceeding against her; (2) that the prosecution of the criminal proceeding against her was without probable cause; (3) that the prosecution was with malice; and (4) that the prosecution was terminated in her favor. Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122.

Want of probable cause is a necessary element of malicious prosecution. The question of lack of probable cause must be determined in accordance with whether the facts and circumstances within the knowledge of the defendant at the time he instituted the criminal prosecution were sufficient to induce a reasonably prudent man to believe that the plaintiff was guilty of the offense charged. Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243.

The absence of probable cause is not the equivalent of malice, nor does it establish malice pro se, though it is evidence from which malice may be inferred. The presence or absence of malice is a question of fact to be determined by the jury. Mitchem v. Weaving Co., 210 N.C. 732, 188 S.E. 329.

Plaintiff's evidence tends to show that she was found guilty in District Court of the trespass charged in the warrant dated 23 January 1971. Upon her appeal to Superior Court, the State entered a nol pros. However, absent a showing that the conviction in District Court was procured by fraud or other unfair means, the conviction conclusively establishes the existence of probable cause, even though plaintiff was acquitted in Superior Court. Priddy v. Department Store, 17 N.C.App. 322, 194 S.E.2d 58. Therefore, it was error to submit issues to the jury upon plaintiff's cause of action for malicious prosecution based upon the warrant issued 23 January 1971, charging trespass. Judgment for defendant, notwithstanding the verdict upon this cause of action, was a proper corrective action and will not be disturbed.

Two of plaintiff's causes of action remain for consideration: (1) the cause of action for malicious prosecution based upon the warrant issued 20 July 1971, charging trespass; and (2) the cause of action for malicious prosecution based upon the warrant issued 24 December 1971, charging larceny of a Christmas tree. Without reviewing the long drawn out and hotly disputed evidence of who crossed onto the other's property, who mowed the other's grass or who cursed and yelled at the other, we are of the opinion that plaintiff's evidence was sufficient to make a prima facie showing of each element of these two causes of action. It matters not that, from the printed record before us, we might decide the issues differently from the way the jury resolved them. Twelve jurors heard the testimony, observed the demeanor of the witnesses and evaluated the evidence under appropriate instructions from the trial judge. The jury has resolved these closely contested issues in favor of plaintiff and against defendant. In the trial of these two causes of action, we find no error of law.

Plaintiff's complaint numbers the causes of action in the exact reverse order of the dates of the warrants upon which they are based. This disposition, therefore, will read in the reverse order of the numbering in plaintiff's complaint.

1. Judgment for defendant notwithstanding the verdict on plaintiff's "Fourth Cause of Action" (warrant issued 23 January 1971, charging trespass) is affirmed.

2. Dismissal of plaintiff's "Third Cause of Action" (warrant issued 25 January 1971, charging loud and indecent language) is affirmed.

3. Judgment for defendant notwithstanding the verdict on plaintiff's "Second Cause of Action" (warrant issued 20 July 1971, charging trespass) is reversed. The verdict rendered thereon by the jury is reinstated, and the cause is remanded to the Superior Court for entry of judgment in conformity with the verdict in favor of plaintiff for $240.00.

4. Judgment for defendant notwithstanding the verdict on plaintiff's "First Cause of Action" (warrant issued 24 December 1971, charging larceny of a Christmas tree) is reversed. The verdict rendered thereon by the jury is reinstated, and the cause is remanded to the Superior Court for entry of judgment in conformity with the verdict in favor of plaintiff for $500.00.

Affirmed in part.

Reversed and remanded in part.

CAMPBELL and BRITT, JJ., concur.