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His Honor properly charged that the plaintiff's right to recover, on the issue concerning malicious prosecution, was dependent upon both malice and want of probable cause on the part of the defendant. In explaining the term "malice," his Honor said to the jury: "Whenever want of probable cause is found by the jury, the jury may infer malice therefrom, or not, but there is no presumption of malice — simply an inference which the jury may or may not draw. The plaintiff contends that, in addition to the inference which you may draw from the want of probable cause, he has offered you evidence upon which you should find malice. There is evidence tending to show that on several occasions the defendant said, if he was not paid, he would put the plaintiff in the penitentiary, and tending to show that he started the prosecution to collect his money. These are circumstances to be considered by you on the question of malice. On the other hand, the defendant denies this evidence and says he had no malice against the plaintiff; that he honestly believed that he had gotten his guano under false pretenses, and to guard against error he employed and consulted counsel. All of these circumstances are to be considered by you as tending to negative malice, and it is your duty to consider them carefully and impartially. Unless you find malice, *Page 121 although you may find want of probable cause, you will answer the issue ``No.' But if you should find both, under the rules of proof laid down as to evidence and law, you will (162) answer the issue ``Yes.' By malice is not necessarily meant that state of mind which must proceed from a spiteful, malignant and revengeful disposition, but it includes as well that which proceeds from an ill-regulated mind, not sufficiently cautious, and recklessly bent on the attainment of some desired end, although it may inflict wanton injury on another."
If no other instruction had been requested by the defendant that charge might be sufficient on the question of malice. But the defendant requested the court to instruct the jury more particularly as follows: "By malice is meant special or particular malice, not general malice, but particular malice against the plaintiff. So before the plaintiff can ask a verdict at your hands on the first issue he must show you that the defendant was prompted by particular malice toward him in procuring the warrant complained of in this action, and at the same time did not have reasonable grounds or probable cause to commence the prosecution."
In Brooks v. Jones,
33 N.C. 260 , which was an action for malicious prosecution, the Court said: "The case then, as we infer, was intended to present this question: In an action for malicious prosecution is it sufficient for the plaintiff to show that the defendant in instituting the prosecution was influenced by general malice, or must he show that the plaintiff had particular malice against him? His Honor thought the plaintiff must show particular malice on the part of the defendant towards him." We concur in this opinion. In actions for libel it is not necessary that the ill will or malice should exist against the plaintiff personally.Gattis v. Kilgo,128 N.C. 402 . The rule, however, is different in actions for malicious prosecution, as we have seen.Error.
Cited: Lewis v. R. R.,
132 N.C. 386 ; Baker v. R. R.,144 N.C. 43 . *Page 122(163)
Document Info
Citation Numbers: 42 S.E. 571, 131 N.C. 159, 1902 N.C. LEXIS 259
Judges: Monto, MontoomeRy
Filed Date: 10/14/1902
Precedential Status: Precedential
Modified Date: 10/19/2024