#### JAMBS W. FOSTER, by His Next Friend, v. GAVIN L. HYMAN and C. C. CODDINGTON, Inc.; FRED BYRD, by His Next Friend, v. GAVIN L. HYMAN and C. C. CODDINGTON, Inc.; EARL FOSTER, by His Next Friend, v. GAVIN L. HYMAN and C. C. CODDINGTON, Inc.

(Filed 8 May, 1929.)

1. Execution K a — Execution against the person will lie where the injury was inflicted wilfully.

Where the pleadings, evidence, and verdict are that an injury was wil-fully inflicted, an order for execution against 'the person of the defendant upon the return of execution against his property unsatisfied is proper. O. S., 768, 678.

2. Same — Driving of automobile in this case held, so reckless as to amount to intent to injure.

Allegations and evidence tending to show that the defendant, while drunk, drove his automobile on the wrong side of a street of' a city where traffic was heavy at a rate of forty-five or fifty miles an hour, under circumstances which should have convinced him, as a man of ordinary prudence, that he incurred the risk of imminent peril to human life, and that the plaintiff was injured thereby: *Helé,*sufficient to sustain the jury’s verdict that the injury was inflicted wilfully and wantonly, and an order for execution against the person of defendant upon return of execution against his property unsatisfied was proper. 0. S., 768, 673.

3. Same — Wilful and Wanton Injury.

An act causing injury to person or property is wilfully done when it is done purposely and deliberately in violation of law, and wantonly done when done recklessly, manifesting a reckless indifference to the rights of others, but wilfulness may be constructive, and where the wrongdoer’s conduct is so reckless as to amount to a disregard for the safety of others it is equivalent to actual intent.

4. Pleadings A b — Verification of complaint by next friend in this case held in proper form and sufficient.

Objection to the sufficiency of the verification of the complaint by plaintiff’s next friend on the ground that the affiant had no personal knowledge of the matters alleged will not be sustained when the allegations are not made to appear to be outside the personal knowledge of the affiant.

5. Judgments D b — Upon judgment by default and inquiry, .inquiry should be made at next succeeding term.

A judgment by default and inquiry entitles the plaintiff to nominal damages without further proof, but the inquiry should be made at the next succeeding term, and when it appears on appeal that the inquiry was made at the same term the cause will be remanded so that the inquiry may be made according to law. 0. S., 596. As to whether a party may waive this provision of the statute, *quaere?*

Appeal by defendant Hyman from *Townsend, Special Judge,*at Special October Term, 1928, of MecKLENBueg.

Error.

*190Consolidated actions to recover damages for injuries to person and property alleged to bave been caused by tbe negligence of tbe defendants, Hyman being an employee of C. C. Coddington, Inc., in causing a collision of tbe car be was driving (tbe property of 0. 0. Coddington, Inc.), witb tbe car of the plaintiffs. At tbe conclusion of tbe evidence judgment of nonsuit was granted as 'to 0. C. Coddington, Inc., and tbe following verdict was returned against Hyman:

1. Were tbe acts of tbe defendant, Gavin L. Hyman, complained of, committed in a wilful and wanton manner as alleged in tbe complaint ? Answer: Yes.

2. Wbat damages, if 'any, is tbe plaintiff, Earl Foster, entitled to recover of tbe defendant, Gavin L. Hyman on account of injuries to bis person ? Answer: $250.00

3. Wbat damages, if any, is tbe plaintiff, Earl Foster, entitled to recover on account of injury to bis property? Answer: $390.00 witb interest.

4. Wbat damages, if any, is tbe plaintiff, James W. Foster, entitled to recover of tbe defendant, Gavin L. Hyman, on account of injuries to bis person? Answer: $50.00.

5. What damages, if any, is tbe plaintiff, Fred Byrd, entitled to recover on account of injuries to bis person ? Answer: $50.00.

Judgment was rendered in behalf of tbe plaintiffs for tbe amounts respectively awarded them; and it was further adjudged that execution issue against tbe property of tbe defendant as provided by law, and if returned unsatisfied in whole or in part that execution issue against tbe person of tbe defendant. Hyman excepted and appealed.

*T. L. Kirkpatrick and B. G-. Watkins for plaintiffs.*

*J ohn M. Robinson and Hunter M. J ones for defendant.*

Adams, J.

Tbe defendant in a civil action may be arrested “Where the action is for injury to person or character, or for injuring, or wrongfully taking, detaining, or converting real or personal property.” C. S., 768. If the action is one in which the defendant might bave been arrested an execution against the person of the judgment debtor may be issued after the return of an execution against bis property wholly or partly unsatisfied. C. S., 673. Tbe judgment, to the signing of which the appellant excepted, provides for an execution against bis person; and bis appeal presents the question whether the trial court committed error in ordering such execution upon the “pleadings and the evidence.” It was perhaps in consequence of the decision in *Peebles v. Foote,*83 N. C., 102, that C. S., 673 was amended by the addition of the words, “whether such statement of facts be necessary to the cause of action or not.” Laws 1891, ch. 541, sec. 2.

*191The appellant contends that error was committed because the complaints do not state causes of action for wilful injury. It has been held that an execution, against the person which would deprive the defendant of his homestead and personal property exemption cannot issue when the judgment is for an injury sustained merely by negligence or accident, but only when the injury has been inflicted intentionally or maliciously; that there must be some element of violence, fraud, or criminality. *Oakley v. Lasater,*172 N. C., 96. In that case the allegation in the complaint was that the injury had been inflicted wrongfully, recklessly, and wantonly, after being forbidden by the plaintiff’s agent,” but the issue was, “Did the defendant negligently injure the inule of the plaintiff?” In *Paul v. Auction Company,*181 N. C., 1, 6, it is said that on recovery for a tort founded on negligence merely, arrest and imprisonment on final process would not be justified, “the cases holding further "that to justify such imprisonment there must be a finding by the jury that the tort was wilfully committed.” This statement of the law is in approval of the opinion to the same effect in *McKinney v. Patterson,*174 N. C., 483. In the present case the complaint includes, not only the element of negligence, but the elements of wilfulness and wantonness. After alleging that the defendant wil-fully, wantonly, and negligently failed and refused to perform certain duties imposed upon him, the plaintiffs say that the injuries they suffered were the direct and proximate result of the wilful and wanton acts as well as the negligent acts and the negligent omission of the defendant.

An act is done wilfully when it is done purposely and deliberately in violation of law *(S. v. Whitener,*93 N. C., 590; *S. v. Lumber Co.,*153 N. C., 610), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. *McKinney v.*Patterson, *supra.*“The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety, of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.” Thompson on Negligence (2 ed.), sec. 20, quoted in *Bailey v. R. R.,*149 N. C., 169.

An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. *Everett v. Receivers,*121 N. C., 519; *Bailey v. R. R., supra.*A breach of duty may be wanton and wilful while the act is yet negligent; the idea of' negligence is eliminated only when the injury or damage is intentional. *Ballew v. R. R.,*186 N. C., 704, 706. In *Foot v. R. R.,*142 N. C., 52, in which the jury found in response to separate issues that the plaintiff had been injured by the wanton and wilful negligence *192of the defendant, distinction was noted between the wilfnlness which is referred to a breach of duty and wilfulness which is referred to the injury; in the former there is wilful negligence, and in the latter intentional injury. But as stated in *Ballew v. R. R., supra,*the intention to inflict injury may be constructive as well as actual. It is constructive where the wrongdoer’s conduct is so reckless or so manifestly indifferent to the consequences, where the safety of life or limb is involved, as to justify a finding of wilfulness and wantonness equivalent in spirit to an actual intent. See citations in *Ballew’s case.*

In applying this principle in a criminal action we have held that the reckless operation of an automobile on the streets of a city may disclose such depravity of mind and such disregard of human life as will supply the malice that distinguishes murder in the second degree from manslaughter. *S. v. Trott,*190 N. C., 674. In the case at bar there was evidence tending to show that the defendant was drunk; that he drove his car at night on the wrong side of the street in a business section of the city of Charlotte at the rate of forty-five or fifty miles an hour, under circumstances which should have convinced him, as a man of ordinary prudence, that he incurred the risk of imminent peril to human life; that his car struck the one in which the plaintiffs were riding, turned it upside down, hurled it against a telephone post, broke the glass, knocked the wheels off, tore out the top, and injured the plaintiffs. If it be conceded that there is no evidence of actual intent to injure the plaintiffs we cannot hold as a matter of law that the constructive intent is not supplied, or that the complaint does not state a cause of action for wilful injury. The exceptions in the first and third assignments of error are therefore overruled.

The appellant’s second assignment is that the complaints are verified by persons not having personal knowledge of the facts. In *Peebles v. Foote, supra,*decided before the amendment of 1891, it is said that ..where the cause of arrest stated in the complaint is essential to the plaintiff’s cause of action, verification of the complaint upon information and belief will not answer unless it gives the sources of information. It will be noted, however, that the allegations material to the plaintiff’s cause of action are not set forth upon information and belief and there is nothing in the record to show that the affiant did not have personal knowledge of the facts therein récited.

The defendant filed no answer, and before introducing evidence the plaintiffs moved for judgment by default and inquiry as to defendant Hyman and his motion was allowed. The statute provides that when judgment by default and inquiry is entered the inquiry shall be executed at the next succeeding term. C. S., 596. The inquiry in the present case was executed at the same term at which judgment by default and *193inquiry was taken. Tbe defendant, it is true, was in the courtroom and did not except to the inquiry or to the submission of the issues to the jury; but according to the record be was there in the capacity of a witness for the plaintiff against C. C. Coddington, Inc., and in fact testified at the plaintiff’s instance. Presumably be acted upon the theory that as to himself the inquiry bad been continued. Granting, only for the present purpose, that the statutory provision for executing the inquiry at a succeeding term is directory and that its requirement may be waived by the defendant, still there is no finding of a waiver and, indeed, no evidence upon which such finding could properly be based. Tbe judgment by default and inquiry was conclusive that the plaintiffs bad a cause of action and were entitled to nominal damages without proof. See dissenting opinion in *Junge v. MacKnight,*135 N. C., 105, which was declared to be the law upon a petition to rehear, in which the former decision was overruled. *Junge v. MacKnight,*137 N. C., 285. But as the inquiry was improperly executed immediately upon rendition of the interlocutory judgment, the cause is remanded to the end that the inquiry be made as the law provides by submitting to another jury issues similar to those appearing in the record. *Brown v. Rhinehart,*112 N. C., 772, 776.

Error.