Blackwood v. Cates , 297 N.C. 163 ( 1979 )

254 S.E.2d 7 (1979) 297 N.C. 163

Geary BLACKWOOD, Jewel Blackwood and Deward Blackwood
v.
Fred S. CATES, Elizabeth Cates Cox, Larry Biggs, Town of Hillsborough, Larry Edwards and the Town of Carrboro.

No. 32.

Supreme Court of North Carolina.

April 20, 1979.

Graham & Cheshire by Lucius M. Cheshire, Hillsborough, for the defendant.

Coleman, Bernholz & Dickerson by Douglas Hargrave and Alonzo B. Coleman, Jr., Hillsborough, for plaintiffs.

COPELAND, Justice.

In his first assignment of error, defendant Fred S. Cates [hereinafter referred to as the defendant] claims he could not be held liable for trespass upon the Blackwood property because he and the officers had the implied consent of the owners, Mr. and Mrs. Blackwood, to enter it. This Court has stated, however, that "[o]ne who enters upon the land of another with the consent of the possessor may, by his subsequent wrongful act in excess or abuse of his authority to enter, become liable in damages as a trespasser." Smith v. VonCannon, 283 N.C. 656, 660, 197 S.E.2d 524, 528 (1973). The defendant concedes that a false arrest occurred in the Blackwood house. Therefore, even assuming arguendo that there was implied consent for the defendant and the two policemen to enter the Blackwood property, they were liable for trespass because of this later wrongdoing. This argument is without merit.

Defendant next argues that although a false arrest and imprisonment of plaintiff Geary Blackwood occurred, he could not be held liable for it because Officer Biggs, a policeman, actually made the arrest. However, the rule is that "A private citizen at whose request, direction, or command a police officer makes an arrest without a warrant is liable if the arrest turns out to be unlawful." 32 Am.Jur.2d, False Imprisonment, § 34 (1967) and cases cited therein. See also Long v. Eagle Store Co., 214 N.C. 146, 198 S.E. 573 (1938). There was plenary evidence from which the jury could find that Officer Biggs arrested plaintiff Geary Blackwood at defendant's "request, direction, or command." This assignment of error is overruled.

Defendant contends the trial court erred in submitting the issues of punitive damages to the jury. The law on this subject in North Carolina is clear:

"[I]t has been uniformly held with us that punitive damages may be awarded in the sound discretion of the jury and within reasonable limits . . . There must be an element of aggravation accompanying the tortious conduct which causes the injury . . . as when the wrong is done willfully or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff's rights." Swinton v. Savoy Realty Co., 236 N.C. 723, 725, 73 S.E.2d 785, 787 (1953), partly overruled on other grounds in Newton v. Standard Fire Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). See also Caudle v. Benbow, 228 N.C. 282, 45 S.E.2d 361 (1947).

Suffice it to say that defendant's conduct in this case was sufficiently outrageous to warrant submitting issues of punitive damages to the jury, and that body did not abuse its discretion in its award. This assignment of error is overruled.

We have examined defendant's remaining assignments of error and find them all totally without merit.

At this point we note what questions are not before the Court for our consideration of this case:

1. Defendant made no objection to the bifurcated trial, and he in fact agreed to it before trial.

2. Defendant made no objection to the judge's charges to the juries in either trial.

3. Defendant made no objection to any of the issues submitted to the juries in either trial.

4. Although the defendant originally moved to set aside the verdicts as being excessive after the second trial, he abandoned any argument relating to this motion on appeal.

5. Defendant unequivocally asserted that he did not want a new trial, and the only relief he sought was the grant of nonsuit.

For the foregoing reasons, the judgment of the trial court is

AFFIRMED.