Lewis v. . Clegg , 120 N.C. 292 ( 1897 )

The defendant knew that the plaintiff had no property except an amount of $31.50 due to him by the railroad company for a month's service already rendered. The defendant, in his testimony, said: "I knew the plaintiff had little or no property, (296) except his clothes and the amount due him by the railroad." With a knowledge of this fact, the defendant sued out arrest and bail proceedings, in which it was alleged that the plaintiff was indebted to him in the sum of $13.60, and that he had disposed of his property with intent to defraud his creditors, and was about to depart from the State. After the arrest had been made, the plaintiff gave the defendant an order on the railroad company for the debt. No return of the proceedings has ever been made by the justice by whom the process was issued. There was testimony going to show that the defendant had abused the process of the law in having issued these proceedings; that his purpose was not to collect his debt by means of legal remedies invoked in good faith, but to compel the debtor to pay to escape the humiliations and pains of imprisonment. There was no pretense that the plaintiff had disposed of any of his property. Indeed, he had nothing to dispose of except the $31.50, and that sum the defendant knew he had not disposed of. Creditors must learn that they cannot resort to the process of the law to enable them to extort from a debtor that which could not be appropriated to their debts by the law. But the debtor, when he becomes a plaintiff against the creditor in an action to recover damages on account of injuries which he has sustained by reason of his unlawful arrest and the abuse of process of the court by creditor, must show that he has been injured by such proceedings. If the arrest was accompanied with malice, gross negligence, insult or other aggravating circumstances, punitive damages will be awarded. If not, the plaintiff can recover only for actual damages, including injury to feelings and mental suffering. In the case before us there was, from the testimony, an entire lack of those elements which would subject the defendant to damages as smart money — punitive damages. Upon a close scrutiny of the (297) testimony — of the plaintiff's particularly — we are unable to discover that the plaintiff has suffered any damage whatsoever. There was no testimony that the marriage was delayed or postponed in any way by reason of the arrest; none that the plaintiff underwent mental or physical suffering; none that he lost employment or credit, or suffered any injury to his character and standing in the community. It is true that he showed that Mr. Patterson had annulled a business contract with him, but he did not say that that act of Mr. Patterson was on account of the plaintiff's arrest by the defendant or that it had any connection with it; and Mr. Patterson testified that he had not heard of the plaintiff's arrest when the agency was revoked by him. He also testified that Mr. Vanstory, the keeper of a livery stable, had refused to credit him, but he did not say that the refusal of credit was on account of the plaintiff's arrest. We are, therefore, of the opinion that his Honor was in error when he refused to instruct the jury as asked in the defendant's first prayer for instructions, which was in these words: "The plaintiff cannot, upon his allegation, recover exemplary or punitive damages, and there is no evidence of actual damage to plaintiff by reason of the arrest." It is unnecessary to discuss the other exceptions. The plaintiff would be entitled to nominal damages and such actual damages as he may show he has sustained.

New trial.

Cited: Lovick v. R. R., 129 N.C. 435; Tucker v. Winder, 130 N.C. 148;Kelly v. Traction Co., 132 N.C. 375.

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