Hawkins v. Hawkins

Annotate this Case

231 S.E.2d 174 (1977)

32 N.C. App. 158

Clay Howard HAWKINS v. Edna Shaw HAWKINS.

No. 7621SC559.

Court of Appeals of North Carolina.

January 5, 1977.

*175 Westmoreland & Sawyer by Barbara C. Westmoreland and Gregory W. Schiro, Winston-Salem, for plaintiff-appellant.

Wilson & Morrow by John F. Morrow, Winston-Salem, for defendant-appellee.

BRITT, Judge.

Plaintiff contends that the trial court erred in granting a directed verdict for defendant at the close of plaintiff's evidence. We think the contention has merit.

To make out a case of malicious prosecution it is necessary that the plaintiff show (1) malice, (2) want of probable cause, and (3) a favorable termination of the proceedings upon which his action is based. Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307 (1948).

Plaintiff has shown a favorable termination of all three proceedings which were instituted against him by defendant. He showed that both trespass charges were dismissed prior to trial and that he was acquitted of the littering charge. This constituted a sufficient showing of a favorable termination in plaintiff's favor.

We now consider want of probable cause. "Probable cause, in cases of this kind [malicious prosecution], has been properly defined as the existence of such facts and circumstances, known to him at the time, as would induce a reasonable man to commence a prosecution." Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149 (1907); Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966). Want of probable cause is regarded as a mixed question of law and fact. Taylor v. Hodge, supra.

As stated in Cook v. Lanier, supra: "Evidence that the chief aim of the prosecution was to accomplish some collateral purpose, or to forward some private interest . . is admissible, both to show the absence of probable cause and to create an inference of malice, and such evidence is sufficient to establish a prima facie want of probable cause." In Abbitt v. Bartlett, 252 N.C. 40, 44, 112 S.E.2d 751, 754 (1960), our Supreme Court also said: "It is well established with us that when a committing magistrate, as such, examines a criminal case and discharges the accused, his action makes out a prima facie case of want of probable cause . . .." However, the acquittal of a defendant by a court of competent jurisdiction does not make out a prima facie case of want of probable cause. Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950).

*176 We think the evidence showing the dismissal of the two trespass charges against plaintiff was a sufficient showing of want of probable cause.

Next, we consider malice, the third essential element of an action for malicious prosecution. "Although a want of probable cause may not be inferred from malice, the rule is well settled that malice may be inferred from want of probable cause, e. g., as where there was a reckless disregard of the rights of others in proceeding without probable cause." Cook v. Lanier, 267 N.C. at 170, 147 S.E.2d at 914. Malice sufficient to take the case to the jury may be inferred from the want of probable cause. Brown v. Martin, 176 N.C. 31, 96 S.E. 642 (1918). Mitchem v. Weaving Co., 210 N.C. 732, 188 S.E. 329 (1936). We think that the inference arising from want of probable cause is sufficient in the present case to take to the jury the question of whether malice was present.

We hold that plaintiff presented sufficient evidence to establish, prima facie, the three elements of malicious prosecution set forth in Taylor v. Hodge, supra.

Plaintiff also contends that the trial court erred in directing a verdict for defendant with respect to his claim for conversion of the mobile home. This contention has merit.

Conversion is defined as "`an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.'" Wall v. Colvard, Inc., 268 N.C. 43, 149 S.E.2d 559 (1966); Gallimore v. Sink, 27 N.C.App. 65, 218 S.E.2d 181 (1975). "A sale of the personal property of another person is an actionable conversion where it is wrongful or unauthorized by law or the consent of the owner and is in defiance of his rights." 89 C.J.S. Trover and Conversion ยง 48.

Taking the evidence in the light most favorable to plaintiff, we think the evidence presented was sufficient to take the case of wrongful conversion to the jury. Plaintiff has sufficiently shown ownership in himself and an unauthorized exercise of dominion and control over the mobile home by defendant. As a bar to this claim defendant argues the fact that plaintiff has obtained a judgment against Mr. Foster to whom defendant sold the mobile home. This argument is not persuasive. Each party participating in a wrongful conversion may be sued by the owner without the joinder of the other, since each is jointly and severally liable. Denny v. Coleman, 245 N.C. 90, 95 S.E.2d 352 (1956). We hold that the trial court erred in granting the motion for a directed verdict as to the claim for conversion.

We have considered the other assignments of error argued in plaintiff's brief but deem it unnecessary to discuss them as they probably will not arise upon a retrial of this cause.

For the reasons stated, the judgment directing a verdict for defendant is reversed and the cause is remanded.

Judgment reversed and cause remanded.

VAUGHN and MARTIN, JJ., concur.