
    KERMIT LOWRY v. D. MARVIN BARKER.
    (Filed 19 May, 1937.)
    1. Appeal and Error § 89—
    Appellant’s exceptions relating to an issue answered in his favor will not be sustained.
    2. False Imprisonment § 2 — Good faith of officer making arrest is material on question of actual damages recoverable by plaintiff.
    Under the facts of this case, the good faith of an officer in making an arrest under an invalid warrant is held material on the question of the amount of actual damages, if any, plaintiff is entitled to recover for the false arrest, and an instruction to this effect is not held prejudicial in view of the jury’s finding upon supporting evidence that plaintiff suffered no actual damages.
    
      3. Escape § 5 — Evidence held for jury on contention of defendant officer that assault was result of plaintiif’s attempt to escape.
    Plaintiff brought this action for wrongful assault, and offered evidence in support of his contention that after he had been taken to jail he was assaulted and beaten, without provocation, by the officer who had arrested him. Defendant officer introduced evidence to the effect that a highway patrolman had helped him arrest plaintiff, that after plaintiff had been taken to the jail and while a cell was being prepared for him, plaintiff attacked the patrolman in an attempt to escape, and that defendant officer had beaten them both with a small stick in order to stop the fight and separate them. Held: The conflicting evidence was properly submitted to the jury, under proper instructions, and the jury’s verdict that plaintiff had not been wrongfully assaulted is upheld.
    Appeal by plaintiff from Parker, J., at October Term, 1936, of Robeson.
    No error.
    This is an action to recover damages, both compensatory and punitive, (1) for the wrongful and unlawful arrest of the plaintiff by the defendant, and (2) for an assault and battery on the plaintiff by the defendant, after the unlawful arrest, and while the plaintiff was wrongfully detained by the defendant.
    The issues arising on the pleadings were answered by the j’ury as follows:
    “1. Did the defendant wrongfully and unlawfully arrest the plaintiff and restrain him of his liberty, as alleged in the complaint ? Answer: ‘Yes.’
    “2. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: 'One penny.’
    
      “3. Did the defendant wrongfully and unlawfully assault and beat the plaintiff, as alleged in the complaint? Answer: 'No.’
    
      “4. What compensatory damages, if any, is the plaintiff entitled to recover of the defendant ? Answer: .
    “5. What punitive damages, if any, is the plaintiff entitled to recover of the defendant ? Answer: .”
    From judgment that plaintiff recover of the defendant one penny and the costs of the action, the plaintiff appealed to the Supreme Court, assigning errors in the trial.
    
      Parser, McIntyre ■& Henry for irtaintiff.
    
    
      McLean & Stacy for defendant.
    
   Connor, J.

On or about 27 September, 1935, between 9 :30 and 10 :00 o’clock at night, the defendant, a rural policeman and deputy sheriff of Robeson County, arrested the plaintiff, who was at work on the Robeson County Fair Grounds, near the town of Lumberton, N. C. The arrest was made under and by virtue of a criminal warrant, wbicb bad been issued by a justice of the peace of Robeson County,-upon the verified complaint, in writing, of Sanford Prevatte. the warrant was addressed to the sheriff or other lawful officer of Robeson County, and commanded the said sheriff or other officer to arrest John Doe, and take him before the recorder of Robeson County to answer the criminal charge made in the complaint. Sanford Prevatte was present when the arrest was made, and bad identified the plaintiff as the man who bad committed the crime charged in the complaint. the defendant did not know the plaintiff. He bad never seen him before the arrest, and relied upon the identification made by Sanford Prevatte, when be arrested him under and by virtue of the warrant, wbicb bad been placed in bis bands by the sheriff of Robeson County.

The court was of opinion that the warrant was void as a matter of law, and that for that reason the arrest of the plaintiff by the defendant was unlawful and wrongful, and so instructed the jury. See Hanie v. Rice, 194 N. C., 234, 139 S. E., 380; Bryan v. Stewart, 123 N. C., 93, 31 S. E., 268; Mead v. Young, 19 N. C., 521; Haskins v. Young, 19 N. C., 528; 16 C. J., 306. In accordance with the instruction of the court, the jury answered the first issue “Yes.” This answer was in accordance with the contention of the plaintiff. Ilis assignments of error with respect to the trial of the first issue are not sustained.

With respect to the second issue, which involves the damages, if any, which the plaintiff is entitled to recover of the defendant for bis unlawful and wrongful arrest and imprisonment, the court instructed the jury substantially as follows:

“Having answered tbe first issue ‘Yes,’ it will be your duty, gentlemen of tbe jury, to award tbe plaintiff at least nominal damages.
“Nominal damages are damages awarded for tbe violation of a right, and are awarded when no actual loss has been sustained by tbe plaintiff as tbe result of tbe violation by tbe defendant of a right of tbe plaintiff; to illustrate, a penny and costs would be nominal damages.
“Tbe burden on tbe second issue of showing damages other than actual damages is on tbe plaintiff. Before you can award him actual damages, tbe plaintiff must have satisfied you by a preponderance of tbe evidence that be is entitled to recover actual damages under tbe rules of law as tbe court will instruct you.
“Tbe damages wbicb tbe plaintiff in an action for false arrest or false imprisonment may recover of tbe defendant, are usually by tbe very nature of tbe wrong, incapable of exact measurement, and must rest largely in tbe discretion of tbe jury. Unless tbe defendant is shown to have acted maliciously, or with wanton and reckless disregard of bis duty and of plaintiff’s rights, tbe damages should be compensatory only, that is, sucb as will fairly compensate tbe plaintiff for bis loss of time, bis expenses incurred in procuring bis release from tbe false imprisonment, and tbe indignity, humiliation, and suffering wbicb be bas undergone as tbe result of bis wrongful and unlawful arrest and imprisonment. Liabilities incurred by tbe plaintiff for medical treatment of bis bodily injuries, if any, may be recovered, altbougb tbey bave not been paid by tbe plaintiff, and altbougb tbe plaintiff was permitted after bis arrest to go at large, witbin a short time, either upon bis own recognizance or upon bail. There is no precise measure of damages in cases of this kind. It is impossible to ascertain tbe exact equivalent in money for bodily or mental pain. As tbe court bas instructed you, tbe damages wbicb tbe plaintiff in an action for false arrest and imprisonment may recover are usually, by tbe very nature of tbe wrong done, incapable of exact measurement, and must rest largely in tbe discretion of tbe jury.
“This is an action, with respect to tbe first and second issues, for false arrest and false imprisonment, and as tbe court bas charged you, tbe warrant under and by virtue of wbicb tbe arrest was made was void, and tbe defendant, altbougb an officer, under tbe circumstances shown by all tbe evidence, was not justified in arresting tbe plaintiff without a warrant. Glood faith on bis part bas nothing to do with tbe question of bis liability to tbe plaintiff for tbe unlawful and wrongful arrest and imprisonment. It is presumed that every one knows tbe law, but tbe good faith of tbe defendant in making tbe arrest is very material on tbe question of tbe amount of damages wbicb tbe plaintiff is entitled to recover of tbe defendant in this action.
“As I bave instructed you, it is your duty, if you answer tbe first issue ‘Yes,’ by your answer to tbe second issue, to award tbe plaintiff at least nominal damages; but before you can award tbe plaintiff actual damages, tbe burden of tbe second issue being on tbe plaintiff, be must satisfy you by tbe preponderance of tbe evidence that be is entitled to recover of tbe defendant actual damages. In that case, your answer to tbe second issue will be tbe amount in dollars and cents wbicb you shall find from all tbe evidence will fairly compensate tbe plaintiff for all tbe injuries wbicb you shall find from tbe evidence be bas suffered as tbe result of bis unlawful and wrongful arrest and imprisonment by tbe defendant.”

There are no errors in tbe instructions of tbe court to tbe jury with respect to tbe second issue, as contended by tbe plaintiff on this appeal. Tbe evidence with respect to this issue was conflicting. Tbe contention of tbe defendant that plaintiff suffered no loss or injury as tbe result of bis arrest or imprisonment, was supported by evidence, and was sustained by tbe jury. Tbe contention of tbe plaintiff to tbe contrary, while supported by evidence, was rejected by tbe jury. Under all tbe facts and circumstances as shown by the evidence for the defendant, his good faith in making the arrest was very material on the question as to the amount of actual damages, if any, which the plaintiff was entitled to recover of the defendant in this action. There was no error in the instruction to that effect. However, if it should be otherwise, the error would not be prejudicial, as the jury found that plaintiff was entitled to recover only nominal damages. See Hicks v. Nivens, 210 N. C., 44, 185 S. E., 469; Rhodes v. Collins, 198 N. C., 23, 150 S. E., 492; Sawyer v. Jarvis, 35 N. C., 179; 25 C. J., 561; and McCormick on Damages, page 379.

The facts with respect to the third issue, which involves the liability of the defendant for an assault and battery upon the plaintiff, as shown by all the evidence, are as follows :

After the defendant, with the aid of two State Highway Patrolmen, had arrested the plaintiff at the Robeson County Fair Grounds, and had taken him in an automobile to the county jail, and while the plaintiff was in the jail in the custody of the defendant, the defendant struck the plaintiff about his shoulders with a stick, thereby causing injuries from which plaintiff suffered for several weeks.

The evidence for the plaintiff tended to show that the assault and battery which the defendant made upon him in the jail was without provocation or excuse, but was wrongful and malicious on the part of the defendant.

The evidence for the defendant tended to show that after he had taken the plaintiff to the jail, and while he was preparing a cell for the plaintiff, the plaintiff, in an attempt to escape from the jail, assaulted one of the highway patrolmen, who had accompanied the defendant from the fair grounds to the jail, and that the plaintiff and the highway patrolmen thereupon engaged in a fight, in the presence of the defendant; and that while they were fighting, and for the purpose of causing them to desist, the defendant struck both of them with a small stick which he had in his hand. After plaintiff and the patrolman stopped fighting, and were separated, the plaintiff, at his request, was taken to a hospital, where he received medical treatment for his injuries. The defendant’s evidence tended to show that the injuries were not serious.

The conflicting contentions of the plaintiff and the defendant with respect to their answer to the third issue were submitted by the court to the jury, under instructions as to the law applicable to the facts as the jury should find the facts to be from the evidence, which are free from error. Plaintiff’s assignments of error with respect to the trial of the third issue cannot be sustained.

The jury having answered the third issue “No,” under the instructions of the court, did not answer the fourth or the fifth issue. Assign-meats of error with respect to the trial of these issues are not sustained.

A careful examination of the record in this appeal discloses no error for which the plaintiff is entitled to a new trial. There was evidence tending to support the contentions of the plaintiff. These contentions were fully and fairly submitted by the court to the jury. They were rejected by the jury.

The judgment in accordance with the verdict is affirmed.

No error.  