Alexander v. Brown , 239 N.C. 527 ( 1954 )

80 S.E.2d 241 (1954) 239 N.C. 527

ALEXANDER
v.
BROWN.

No. 90.

Supreme Court of North Carolina.

February 24, 1954.

Guy Weaver, Asheville, for plaintiff, appellant.

J. W. Haynes, Asheville, and Roy A. Taylor, Black Mountain, for defendant Lawrence E. Brown, appellee.

ERVIN, Justice.

We have examined the exceptions bearing on the first cause of action, and found that none of them point out any error of law entitling the plaintiff to a new trial of the cause of action for false arrest and imprisonment. It is otherwise, however, with respect to the exception which challenges the dismissal of the second cause of action upon the involuntary nonsuit.

The plaintiff offered substantially the same evidence at the second trial on the merits before Judge Sink and the jury as that presented by him at the original trial on the merits before Judge Shuford and the jury. This being so, the question of the sufficiency of the plaintiff's evidence to withstand a motion for an involuntary nonsuit on the second cause of action was foreclosed against the defendant Brown by the decision on the first appeal adjudging the plaintiff's evidence ample to carry the case to the jury and support a verdict against the defendant Brown upon the cause of action for malicious prosecution. Mintz v. Atlantic Coast Line R. Co., 236 N.C. 109, 72 S.E.2d 38. This conclusion necessitates a reversal of the involuntary nonsuit upon the second cause of action.

No error upon cause of action for false arrest and imprisonment.

Reversed upon cause of action for malicious prosecution.