Todd v. Creech

209 S.E.2d 293 (1974)

23 N.C. App. 537

Weldin TODD v. John Henry CREECH.

No. 7413DC532.

Court of Appeals of North Carolina.

November 6, 1974.

Certiorari Denied December 30, 1974.

*294 McGougan & Wright by D. F. McGougan, Jr., Tabor City, for plaintiff-appellant.

Atty. Gen. James H. Carson, Jr. by William W. Melvin and William B. Ray, Asst. Attys. Gen., Raleigh, for defendant-appellee.

Certiorari Denied by Supreme Court December 30, 1974.

BALEY, Judge.

In ruling upon a defendant's motion for a directed verdict, the trial court must consider all the plaintiff's evidence in the light most favorable to him, giving to plaintiff the benefit of all reasonable inferences and resolving all conflicts in his favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47. The motion may be granted only if the evidence is insufficient as a matter of law to support a verdict for the plaintiff. Younts v. Insurance Co., 281 N.C. 582, 189 S.E.2d 137; Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396. Applying this standard to the case at bar, we are of the opinion that the evidence is sufficient to warrant submission to the jury.

The testimony of the plaintiff, if believed, would permit a finding that defendant entered the jail cell after plaintiff was arrested and in custody, that defendant made statements to the effect that "I'll get him. I'll get the son-of-a-bitch," and that defendant struck plaintiff with a blackjack without provocation causing a severe cut in the head and subsequent hospitalization. Police officer Harley Williams testifying for plaintiff stated that he gave defendant his blackjack at defendant's request, that defendant took the blackjack into the cellblock, *295 and that the blackjack was returned to him three or four minutes later. About five minutes after the blackjack was returned, he saw the plaintiff being carried to the hospital.

While an officer in making an arrest and securing control of an offender has the right to use such force as may be reasonably necessary in the proper discharge of his duties, he may not act maliciously in the wanton abuse of his authority or use unnecessary and excessive force. State v. Fain, 229 N.C. 644, 50 S.E.2d 904; State v. Dunning, 177 N.C. 559, 98 S.E. 530; 5 Am. Jur.2d, Arrest, §§ 80, 81, pp. 766-768. Within reasonable limits the officer has discretion to determine the amount of force required under the circumstances as they appeared to him at the time he acted. But, when there is substantial evidence of unusual force, it is for the jury to decide whether the officer acted as a reasonable and prudent person or whether he acted arbitrarily and maliciously. Perry v. Gibson, 247 N.C. 212, 100 S.E.2d 341; State v. Pugh, 101 N.C. 737, 7 S.E. 757. Under the circumstances as revealed by the evidence for the plaintiff, the jury could have found that defendant abused his authority and used excessive force to subdue plaintiff. It was error to direct a verdict for the defendant.

New trial.

BRITT and HEDRICK, JJ., concur.