Mobley v. Broome

102 S.E.2d 407 (1958) 248 N.C. 54

J. C. MOBLEY
v.
Jess BROOME and A. R. Edison.

No. 163.

Supreme Court of North Carolina.

March 19, 1958.

Ernest R. Warren and Hugh W. Johnston, Gastonia, for plaintiff-appellant.

Mullen, Holland & Cooke, Gastonia, for defendants-appellees.

JOHNSON, Justice.

"False imprisonment is the illegal restraint of one's person against his will. It generally includes an assault and battery, and always, at least, a technical assault." Hoffman v. Clinic Hospital, 213 N.C. 669, 670, 197 S.E. 161, 162. "A false arrest is one means of committing a false imprisonment, * * *" 35 C.J.S. False Imprisonment § 2, p. 502.

"The right of action for false imprisonment accrues at the beginning of the imprisonment but does not become complete until the termination thereof, the tort being regarded as divisible." 35 C.J.S. False Imprisonment § 49, p. 577.

By the weight of authority, an action for false imprisonment will lie irrespective of the termination of the prosecution in which the imprisonment occurred. 35 C.J.S. False Imprisonment § 49, p. 577; 25 C.J. p. 528. Cf. Jackson v. Parks, 216 N.C. 329, 4 S.E.2d 873. It is otherwise as to malicious prosecution. Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307.

In the case at hand, the plaintiff's right of action for false imprisonment accrued at the time of his unlawful arrest. His cause of action was complete when he was released from custody by the giving of bond, and limitations then began running. His cause of action for false imprisonment was completely barred at the end of one year therefrom, by virtue of G.S. § 1-54 subd. 3. This is so notwithstanding the criminal prosecution in which the arrest took place continued within the limitations period. The pendency of the criminal prosecution in no wise affected or tolled the running of the statute of limitations. Dusenbury v. Keiley, 8 Daly, N.Y., 537, 58 How.Pr. 286, affirmed 85 N.Y. 383, 61 How. Pr. 408; 35 C.J.S. False Imprisonment § 49, p. 578.

Any right of action the plaintiff may have had for assault and battery, apart from false imprisonment, in connection with the arrest on 6 June, 1953, was also barred by the one-year statute of limitations, G.S. § 1-54, subd. 3, before the commencement of the instant action on 24 November, 1954.

Ordinarily, the bar of the statute of limitations is a mixed question of law and fact. But where the bar is properly pleaded and all the facts with reference thereto are admitted, the question of limitations becomes a matter of law. Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279; Ewbank v. Lyman, 170 N.C. 505, 87 S.E. 348. See also Perry v. Southern Surety Co., 190 N.C. 284, 129 S.E. 721; Butts v. Screws, 95 N.C. 215. Here the admitted facts show that the plaintiff's cause of action was barred before the action was instituted. The ruling below so holding will be upheld.

Affirmed.