Priddy v. Cook's United Department Store

194 S.E.2d 58 (1973)

17 N.C. App. 322

Randy Leon PRIDDY v. COOK'S UNITED DEPARTMENT STORE et al.

No. 7321SC5.

Court of Appeals of North Carolina.

January 31, 1973.

*59 Wilson & Morrow, by John F. Morrow, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant appellees.

GRAHAM, Judge.

The complaint and plaintiff's affidavit affirmatively show that the claims for assault and false imprisonment arose more than one year before the suit was instituted. These claims are therefore barred by the one-year statute of limitation applicable to both claims. G.S. § 1-54(3).

The only question presented on appeal is whether the trial judge correctly concluded that no genuine issue of fact exists as to plaintiff's claim for malicious prosecution. We hold that he did and affirm his order granting defendants' motion for summary judgment.

Want of probable cause is an essential element of malicious prosecution. 5 Strong, N.C.Index 2d, Malicious Prosecution, § 1. The affidavit offered by defendants, and also plaintiff's admission in his own affidavit, established that plaintiff was convicted in the District Court of Forsyth County under the warrant that is the basis of his claim that he was prosecuted maliciously. This conviction, in the absence of a showing that it was procured by fraud or other unfair means, conclusively establishes the existence of probable cause, even though plaintiff was afterwards acquitted of the charge in superior court. Moore v. Winfield, 207 N.C. 767, 178 S.E. 605. See also Overton v. Combs, 182 N.C. 4, 108 S.E. 357; Smith v. Thomas, 149 N. C. 100, 62 S.E. 772; Price v. Stanley, 128 N.C. 38, 38 S.E. 33; Griff is v. Sellars, 19 N.C. 492.

In Moore v. Winfield, supra, the Supreme Court pointed out that in some states a conviction is only prima facie evidence of probable cause if a new trial is granted or the judgment is reversed upon appeal; while in other states, including North Carolina, the conviction remains conclusive evidence unless shown to have been procured by artifice or fraud. The court cited the case of Haddad v. Chesapeake and O. Ry. Co., 77 W.Va. 710, 88 S.E. 1038, for the following proposition: "A judgment of conviction for larceny, although reversed on writ of error, and the accused discharged from further prosecution on remand of the case, is conclusive evidence of probable cause for believing the accused guilty of the offense charged to him, unless the conviction was procured by fraud; and on plaintiff in an action for malicious prosecution devolves the duty of averring and by convincing proof showing such fraud or other undue means." (Emphasis added.) Moore v. Winfield, supra, 207 at 770, 178 S.E. at 606-607.

Here, there are no allegations in plaintiff's complaint nor averments in his affidavit tending to show that he is prepared to offer evidence at trial that his conviction in district court was obtained by fraud or other unfair means.

Affirmed.

CAMPBELL and BROCK, JJ., concur.