Freeman v. General Motors Acceptance Corp.

171 S.E. 63, 205 N.C. 257, 1933 N.C. LEXIS 524

• Court: Supreme Court of North Carolina
• Decided: October 11, 1933
• Status: Published

Opinion

Stacy, C. J.

That the defendant had the right, under its contract, peaceably to repossess the automobile is not questioned. Jackson v. Hall, 84 N. C., 489; Hinson v. Smith, 118 N. C., 503, 24 S. E., 541; Moore v. Hurtt, 124 N. C., 27, 32 S. E., 317; Harris v. R. R., 190 N. C., 480, 130 S. E., 319; Willis v. Whittle, 82 S. C., 500, 64 S. E., 410; 24 R. C. L., 486.

Did its agent commit a trespass in repossessing the car ? This is the only mooted point in the case. The trial court was of opinion that he did not, which position is strongly supported by the decision in Willis v. Whittle, supra, a South Carolina case practically on all-fours with the one at bar.

But it is the law of this jurisdiction that although an entry on lands may be effected peaceably and even with permission of the owner, yet if, after going upon the premises of another, the defendant uses violent and abusive language and commits such acts as are reasonably calculated to intimidate or lead to a breach of the peace, he would be liable for trespass civiliter as well as crimiliter (S. v. Stinnett, 203 N. C., 829, 167 S. E., 63), for “It may be, he was not at first a trespasser, but he became such as soon as he put himself in forceable opposition to the prosecutor.” S. v. Wilson, 94 N. C., 839; S. v. Earp, 196 N. C., 164; S. v. Tyndall, 192 N. C., 559, 135 S. E., 451; S. v. Davenport, 156 N. C., 596, 72 S. E., 7; S. v. Lawson, 123 N. C., 740; S. v. Hinson, 83 N. C., 640.

Where there is such a show of force as to create a reasonable apprehension in the mind of the one in possession of premises that he must yield to avoid a breach of the peace, and he does so yield, this is a yielding upon force, and constitutes forceable trespass. S. v. Pollok, 26 N. C., 305; S. v. Oxendine, 187 N. C., 658, 122 S. E., 568.

The position is further supported by the decision in Somers v. Credit Co., 201 N. C., 601, 160 S. E., 829.

The plaintiff’s evidence was such as to carry the case to the jury. It is true, the defendant’s agents testified to a contrary state of facts,- but this was for the twelve.

Reversed.