Lowe v. Department of Motor Vehicles

93 S.E.2d 448 (1956)

244 N.C. 353

Lester LOWE v. DEPARTMENT OF MOTOR VEHICLES.

No. 378.

Supreme Court of North Carolina.

June 26, 1956.

*452 Allen, Henderson & Williams, Elkin, for plaintiff, appellee.

Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. Claude L. Love and Harvy W. Marcus, Member of Staff, Raleigh, for defendant, appellant.

BOBBITT, Justice.

Careful consideration of the evidence impels the conclusion that there was competent evidence to support the particular findings of fact made by the Commission and its ultimate finding or conclusion that plaintiff's injuries were caused by the actionable negligence of defendant. Hence, assignments of error challenging the sufficiency of the evidence to support the findings of fact are overruled.

The more serious question is whether the Commission made its ultimate finding or conclusion of actionable negligence under misapprehension of the applicable law. McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324.

Negligence is a mixed question of fact and of law. McCrowell v. Southern R. R. Co., 221 N.C. 366, 20 S.E.2d 352, and cases cited. In a jury trial, the presiding judge declares and explains the law arising on the evidence in the case. G.S. § 1-180. Guided by such instructions, the jury resolves the disputed factual elements. By its verdict, the jury declares the ultimate finding.

The Commission makes both findings of fact and conclusions of law. When dealing with a composite such as negligence, it might be possible by deft discrimination to isolate the element of fact from the element of law; but, since each permeates the whole concept, ordinarily the findings of fact reflect the legal aspect and the conclusions of law reflect the factual aspect. Such a situation obtains here. Finding of fact No. 8 includes a finding that the patrolman negligently pointed his pistol at the car in which plaintiff was riding. Conclusion of law No. 4 sets forth factual details and the factual conclusion that the patrolman failed to exercise due care under the circumstances.

The Commission found that the patrolman had no warrant for the arrest of plaintiff or any person riding with him. All the *453 evidence, including that of the patrolman, supports this finding. But appellant contends that under the Commission's findings, the patrolman "found" plaintiff violating the provisions of G.S., Ch. 20, Art. 3, specifically G.S. § 20-141. It is true that in such case, as appellant contends, the patrolman was clothed with legal power to arrest plaintiff for the violation of G.S. § 20-141, a misdemeanor under the statute relating to motor vehicles, "on sight or upon warrant." G.S. § 20-183; State v. Mobley, 240 N.C. 476, 83 S.E.2d 100. However, it does not appear that the absence of a warrant, insofar as an arrest for the misdemeanor was concerned, was given any significance by the Commission.

Appellant contends that the Commission, in conclusions of law Nos. 2 and 3, did not state accurately the applicable law; and that the ultimate finding of actionable negligence was predicated, in whole or in part, upon the erroneous conclusion that in pointing his gun at the plaintiff, under the circumstances set forth, the patrolman was guilty of negligence per se.

If any person intentionally points a pistol at any person, this action is in violation of G.S. § 14-34 and constitutes an assault. State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768; State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Limerick, 146 N.C. 649, 61 S.E. 568. Moreover, such action, being in violation of the statute, is negligence per se; and if the pistol accidentally discharges, the injured person may recover damages for actionable negligence.

We agree with appellant that the literal provisions of G.S. § 14-34 are subject to the qualification that the intentional pointing of a pistol is in violation thereof only if done wilfully, that is, without legal justification. A different interpretation would contravene the manifest intention of the General Assembly. Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410; State v. Barksdale, 181 N.C. 621, 107 S.E. 505; State v. Earnhardt, 170 N.C. 725, 86 S.E. 960.

Even so, legal justification must be made to appear, whether it be an individual who intentionally points a pistol at his assailant in the exercise of a perfect right of self-defense or an officer who does so in good faith in the discharge of his official duty and when necessary or apparently necessary either to defend himself or to make a lawful arrest or otherwise to perform his official duty. But the mere fact that he is an officer engaged in the performance of an official duty does not perforce exempt him from the provisions of the statute.

When the pistol fired, the car operated by plaintiff had stopped. The occupants were aware that an officer was in pursuit. None of the occupants attempted to leave. No resistance was offered or threatened. The patrolman made no call that the occupants of the car get out nor did he give notice that they were under arrest. No word was spoken. Immediately, when the car stopped, he got out of the patrol car, with his pistol cocked and pointed in the direction of the car plaintiff was driving; and in running towards that car with his pistol so pointed, without observing what was in his path, he tripped and the gun fired. This is the purport of the findings. Moreover, the uncontradicted evidence is to that effect.

There is no finding of fact to the effect that the patrolman had reasonable grounds for the belief that the occupants of the car were armed or desperate men. Nor is there a finding of fact that the patrolman's conduct was necessary or reasonably appeared to be necessary to defend and protect himself from bodily harm. Nor is there a finding of fact that the patrolman believed or had reasonable ground to believe that the men in this car were the escapees (they were not) from the Watauga County Prison Camp. Moreover, there was no request for such findings. On the contrary, both in the findings of fact and in conclusion of law No. 4, the Commission made manifest its determination that the circumstances did not justify the action of the patrolman. We must keep in mind that the patrolman's conduct is to be considered in relation to *454 actionable, not culpable, negligence. Hence, we strike from the last sentence of paragraph 4 these words: "* * * he threw caution to the winds and by his gross negligent conduct left a young man afflicted for life." If warranted by the evidence, which is not conceded, it is not material to plaintiff's right to recover for actionable negligence.

While the general statement of legal principles may have been incomplete in that the Commission did not discuss the qualification, namely, that G.S. § 14-34 did not apply to a person acting with legal justification, we think it appears plainly that the Commission rejected appellant's contention as to legal justification and found that the patrolman without legal justification pointed his pistol at plaintiff or at the car in which he was riding, and that this act, considered with his other conduct at the time, constituted actionable negligence.

U. S. v. Folk, 4 Cir., 199 F.2d 889, relied on "very heavily" by defendant, is factually distinguishable. In that case, a federal officer was pursuing through the woods a man who fled from the site of an illicit distillery. The officer's pistol accidentally discharged when he jumped a ditch. There was no finding of fact that the officer had pointed the pistol intentionally at the man or in his direction. In short, the cited case is not regarded as controlling in relation to the facts here presented.

We conclude that the evidence supports the particular findings; that the particular findings support the ultimate conclusion that plaintiff's injuries were caused by defendant's actionable negligence; and that the findings made dispel the idea that they were based in any material aspect on misapprehension of the applicable law. Indeed, the findings negative legal justification for defendant's conduct in pointing the pistol. Hence, the judgment of the court below is

Affirmed.

BARNHILL, C. J., dissents.