Mobley v. Broome

Supreme Court of North Carolina

Mobley v. Broome

102 S.E.2d 407, 248 N.C. 54, 1958 N.C. LEXIS 329

CourtSupreme Court of North Carolina

DecidedMarch 19, 1958

Docket163

StatusPublished

Cited by28 cases

This text of 102 S.E.2d 407 (Mobley v. Broome) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mobley v. Broome, 102 S.E.2d 407, 248 N.C. 54, 1958 N.C. LEXIS 329 (N.C. 1958).

Pincite

Opinion

Johnson, J.

“False Imprisonment is the illegal restraint of one’s person against his will. It generally includes an assault and battery, and always, at least, a technical assault.” Hoffman v. Hospital, 213 N.C. 669, 670, 197 S.E. 161. “A false arrest is one means of committing a false imprisonment, . . 35 C. J. S., p. 502.

• “The right of action for false imprisonment accrues at the beginning of the imprisonment but does not become complete until the termination thereof, the tort being regarded as divisible.” 35 C. J. S., p. 577.

By the weight of authority, an action for false imprisonment will lie irrespective of the termination of the prosecution in which the imprisonment occurred. 35 C. J. S., p. 577; 25 C. J. p. 528. Cf. Jackson v. Parks, 216 N.C. 329, 4 S.E. 2d 873. It is otherwise as to malicious prosecution. Taylor v. Hodge, 229 N.C. 558, 50 S.E. 2d 307.

In the case at hand, the plaintiff’s right of action for false imprisonment accrued at the time of his unlawful arrest. His cause of action was complete when he was released from custody by the giving of bond, and limitations then began running. His cause of action for false imprisonment was completely barred at the end of one year therefrom, by virtue of G. S. 1-54 (3). This is so notwithstanding the criminal prosecution in which the arrest took place continued within the limitations period. The pendency of the criminal prosecution in nowise affected or tolled the running of the statute of limitations. Dusenbury v. Keiley, 8 Daly 537, 58 How. Pr. 286, affirmed 85 N. Y. 383, 61 How. Pr. 408; 35 C. J. S., p. 578.

Any right of action the plaintiff may have had for assault and battery, apart from false imprisonment, in connection with the arrest on 6 June, 1953, was also barred by the one-year statute of limitations, G.S. 1-54 (3), before the commencement of the instant action on 24 November, 1954.

Ordinarily, the bar of the statute of limitations is a mixed question of law and fact. But where the bar is properly pleaded and all the facts with reference thereto are admitted the question of limitations becomes a matter of law. Currin v. Currin, 219 N.C. 815, 15 S.E. 2d 279; Ewbank v. Lyman, 170 N.C. 505, 87 S.E. 348. See also Perry v. Southern Surety Co., 190 N.C. 284, 129 S.E. 721; Butts v. Screws, 95 N. C. 215. Here the admitted facts show that the plaintiff’s cause of action was barred before the action was instituted. The ruling below so holding will be upheld.

Affirmed.

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Johnson, J.

“False Imprisonment is the illegal restraint of one’s person against his will. It generally includes an assault and battery, and always, at least, a technical assault.” Hoffman v. Hospital, 213 N.C. 669, 670, 197 S.E. 161. “A false arrest is one means of committing a false imprisonment, . . 35 C. J. S., p. 502.

• “The right of action for false imprisonment accrues at the beginning of the imprisonment but does not become complete until the termination thereof, the tort being regarded as divisible.” 35 C. J. S., p. 577.

By the weight of authority, an action for false imprisonment will lie irrespective of the termination of the prosecution in which the imprisonment occurred. 35 C. J. S., p. 577; 25 C. J. p. 528. Cf. Jackson v. Parks, 216 N.C. 329, 4 S.E. 2d 873. It is otherwise as to malicious prosecution. Taylor v. Hodge, 229 N.C. 558, 50 S.E. 2d 307.

In the case at hand, the plaintiff’s right of action for false imprisonment accrued at the time of his unlawful arrest. His cause of action was complete when he was released from custody by the giving of bond, and limitations then began running. His cause of action for false imprisonment was completely barred at the end of one year therefrom, by virtue of G. S. 1-54 (3). This is so notwithstanding the criminal prosecution in which the arrest took place continued within the limitations period. The pendency of the criminal prosecution in nowise affected or tolled the running of the statute of limitations. Dusenbury v. Keiley, 8 Daly 537, 58 How. Pr. 286, affirmed 85 N. Y. 383, 61 How. Pr. 408; 35 C. J. S., p. 578.

Any right of action the plaintiff may have had for assault and battery, apart from false imprisonment, in connection with the arrest on 6 June, 1953, was also barred by the one-year statute of limitations, G.S. 1-54 (3), before the commencement of the instant action on 24 November, 1954.

Ordinarily, the bar of the statute of limitations is a mixed question of law and fact. But where the bar is properly pleaded and all the facts with reference thereto are admitted the question of limitations becomes a matter of law. Currin v. Currin, 219 N.C. 815, 15 S.E. 2d 279; Ewbank v. Lyman, 170 N.C. 505, 87 S.E. 348. See also Perry v. Southern Surety Co., 190 N.C. 284, 129 S.E. 721; Butts v. Screws, 95 N. C. 215. Here the admitted facts show that the plaintiff’s cause of action was barred before the action was instituted. The ruling below so holding will be upheld.

Affirmed.

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Bluebook (online)

102 S.E.2d 407, 248 N.C. 54, 1958 N.C. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobley-v-broome-nc-1958.

Opinion

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