Gray v. Gray

226 S.E.2d 417 (1976)

30 N.C. App. 205

Roy GRAY v. Richard GRAY.

No. 768SC149.

Court of Appeals of North Carolina.

July 21, 1976.

*418 W. Powell Bland and Herbert B. Hulse, Goldsboro, for defendant-appellant.

Roland C. Braswell, Goldsboro, for plaintiff-appellee.

ARNOLD, Judge.

Plaintiff testified that he tended the same croplands in 1971 as he tended in 1970, except for the Benson farm and the homeplace. He stated that the crop allotments, weather conditions, and the equipment he used were about the same for both years. Plaintiff's tax returns, with farm income and expense schedules, for 1970 and 1971 were introduced also.

Defendant assigns as error the admission of plaintiff's evidence as to damages for breach of contract. He contends that the proof of lost profits was uncertain and speculative. We see merit in this contention.

Lost profits may be recovered where it is reasonably certain that such profits would have been realized except for the breach, and where there is substantial evidence by which the damages can be ascertained and measured with reasonable certainty. Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953). All reasonable factors must be shown to provide a basis for determining that the profits would have been realized except for the breach. Tillis v. Cotton Mills and Cotton Mills v. Tillis, 251 N.C. 359, 111 S.E.2d 606 (1959); also, Daly v. Weeks, 10 N.C.App. 116, 178 S.E.2d 30 (1970).

Evidence of plaintiff's special damages was insufficient. No evidence was offered to indicate whether market prices received for crops were the same in 1971 as *419 they were in 1970, or whether expenses, for such items as fertilizer, fuel, chemicals and labor, were approximately the same in 1971 as in 1970. These are reasonable factors to be considered in ascertaining and measuring with reasonable certainty the amount of plaintiff's lost profits.

In order to recover in an action for malicious prosecution the plaintiff has to establish that defendant (1) instituted, or procured the institution of, an earlier proceeding against plaintiff, (2) maliciously and (3) without probable cause, and (4) that the proceeding terminated in plaintiff's favor. See 5 N.C. Index 2d, Malicious Prosecution, § 1, p. 274, and cases cited therein; also see Malicious Prosecution in North Carolina, 47 N.C.L.Rev. 285.

Plaintiff has the burden of alleging and proving that the prior proceeding against him was instituted without probable cause. Greer v. Broadcasting Co., 256 N.C. 382, 124 S.E.2d 98 (1962). A lack of probable cause is not established by showing that the prior proceeding terminated in plaintiff's favor, Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965), or that the proceeding was instituted maliciously, Tucker v. Davis, 77 N.C. 330 (1877), or that plaintiff was innocent, Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122 (1939). Probable cause depends upon whether there was a reasonable ground for suspicion, supported by circumstances sufficiently strong to warrant a cautious man's belief in the guilt of the accused. Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966).

The question critical to this case is whether plaintiff's evidence established a lack of probable cause, i. e., whether there was a reasonable ground for suspicion by a reasonable man that plaintiff was an inebriate. Defendant contends that the trial court should have directed a verdict in his favor as to malicious prosecution because the evidence established as a matter of law that he had probable cause to institute the inebriacy proceeding. We agree with defendant.

It is not necessary to review all the pertinent evidence regarding plaintiff's drinking habits. There is contradictory evidence in the record, but plaintiff himself, on cross-examination, testified concerning his drinking pattern over a thirteen year period. He stated that he drank every day, and that some days he drank more than others. He further testified that his drinking had increased over the years, and, though he denied drinking a fifth of whiskey a day, he admitted that he drank "probably a pint a day."

This evidence was sufficient for a reasonable man to have reasonable grounds to suspect that plaintiff, who was defendant's brother in this case, had an alcoholic problem serious enough to warrant the institution of an inebriacy proceeding.

It is our opinion that defendant's motion for directed verdict should have been granted as to malicious prosecution. Since defendant complied with G.S. 1A-1, Rule 50(b)(1) by moving for judgment notwithstanding the verdict, in addition to moving for directed verdict at the close of all the evidence, we direct entry of judgment in accordance with defendant's motion as to the allegations of malicious prosecution. G.S. 1A-1, Rule 50(b)(2); Nichols v. Real Estate, Inc., 10 N.C.App. 66, 177 S.E.2d 750 (1970).

The verdict and judgment are vacated and a new trial is ordered in plaintiff's action for breach of contract. The cause is remanded with direction that judgment be entered in accordance with defendant's motion for directed verdict in the action for malicious prosecution.

New trial in part.

Reversed and remanded in part.

PARKER and HEDRICK, JJ., concur.