Barringer v. . Deal

80 S.E. 161 | N.C. | 1913

This action is to recover damages for the slander of the feme plaintiff. The charge, if not true, was a cruel and malicious slander. The defendant in his answer does not plead justification, but admits that at the time of making the libelous statement he did not know that it was true, and in his evidence admits that it was not true. He does not plead privilege, and it was not an occasion for privilege.

The first exception is because the judge excluded the following question: "You admit in your answer using the language charged for a purpose. Tell what your purpose was." This question was properly excluded. The language on its face was grossly libelous per se. It was not competent for the defendant to testify as to his purpose, which was only a mental conclusion, unless he had stated his purpose at the time of the making the libelous utterance. Not having done so, it could not lessen the damage and wrong done the plaintiff that the defendant may have had a concealed ulterior motive. In Fields v. Bynum, 156 N.C. 413, the Court said: "The defendant must show something more than honest belief in the truth of his utterances, for he must show that the communication was made in good faith on an occasion which justified his making it." None of these things were shown.

It was competent to ask the witness whether he had any malice (248) toward the plaintiff. This was done, and the defendant testified that he did not have any malice. But it is not open to him to testify that he had a motive which he did not make known at the time of his utterance. The rule is thus stated in Folkard's Starkie on Slander, 398, note 2: "A defendant in an action for slander has a right to explain the meaning of the words used by him and rebut the presumption of malice if his explanation is by reference to matters occurring when the words were spoken, so that those hearing them ought to have understood them as explained." But this does not permit the defendant to testify that he had a hidden, uncommunicated motive, when at the time of using the words it was not made known to those who heard him make the slanderous statement.

The exception that the court permitted the plaintiff to recover compensatory damages without proof of having actually suffered any, cannot be sustained. In Hamilton v. Nance, 159 N.C. 56, it is held: "In an action for slander, where justification is not pleaded and privilege is not claimed, the jury, upon finding an affirmative answer to the first issue, implies as a matter of law that the charge complained of is false and malicious, and compensatory damages should be awarded; and additional punitive damages may also be given if the jury find actual malice." To same effect, Fields v. Bynum, 156 N.C. 414, where the Court says: "When general damages are sought in an action of slander for words spoken which are actionable per se, compensatory damages may be awarded which embrace compensation for those injuries which the law will presume must naturally, proximately and necessarily result, including injury to the feeling and mental suffering endured in consequence; and it is not incumbent on the plaintiff to introduce evidence that he has suffered special damage in such instance." This was excepted to, but is a verbatim quotation from that opinion.

The defendant requested certain prayers which the court declined to give, for the reason that they were "handed up after the conclusion of the charge." Revisal, 536, 538, require such prayers to be handed up at or before the close of the evidence, and it was not error for the judge to refuse to consider them. Craddock v. Barnes, 142 (249) N.C. 89; Biggs v. Gurganus, 152 N.C. 173.

We cannot pass over without notice that the assignment of errors are insufficiently made, in that they merely refer to the exceptions, without giving the substance of the matters excepted to. Thompson v. R. R.,147 N.C. 412; Smith v. Manufacturing Co., 151 N.C. 260;Keller v. Fiber Co., 157 N.C. 576.

No error.

Cited: Hardware Co. v. Buggy Co., 170 N.C. 301.