Hamilton v. . Nance
74 S.E. 627
N.C.
1912
Check Treatment
Allen, J.

Thе complaint alleges that the defendant charged that the “news” was that the husband of thе plaintiff “had” a venereal disease, naming it, and “has given it to his wife.” The answer admits that he sаid the “report” was that the husband of the plaintiff “has had” the disease named in the comрlaint, and “has given it to his wife.”

The plaintiff tendered the following issue, which the court refused to submit, and the plaintiff excepted: “1. Did the defendant wrongfully and falsely speak of and concerning the plaintiff language imputing that the plaintiff was afflicted with a venereal disease, as alleged in the complaint?”

His Honor submitted the issue, “Did the defendant wrongfully and falsely spеak of and concerning the plaintiff” (and then follows the words set out in the complaint), and charged the jury that if the plaintiff had not satisfied them by the greater weight of the evidence that the defendant spoke those words, to answer the first issue “No,” and the plaintiff excepted,

In our opinion, the ruling was erroneous and ‍‌‌‌‌​​​‌​​​​‌‌‌​​‌​​​​​​​​‌​‌‌​‌‌​​​​​​​‌‌​‌​​​‌‍entitles the plaintiff to a new trial.

In an action to recover damages for slander the plaintiff is not required to prove thе utterance of the exact words set out in the complaint, but must prove the words in substanсe, and his Honor should have so instructed the jury. The issue sub *58 mitted could not have been answerеd in favor of tbe plaintiff under tbe instructions of tbe court if tbe jury found that tbe defendant used all tbe language set out in tbe complaint, except that be used tbe word “report” instead of tbe word “news,” which would be contrary to tbe practice under our system of pleаding. Revisal, 515 and 516.

Issues are approved in McCurry v. McCurry, 82 N. C., 296; Wozelka v. Hettrick, 93 N. C., 10, and in Rice v. McAdams, 149 N. C., 29, submitting tbe inquiry to tbe jury as to whether tbe defendant spoke tbe words set out in tbe. complaint “or words of tbe same substance,” and it is generally held that proof of tbe words in substance is sufficient. 18 A. and E. Enc. L., 1078; 13 Ency. Pl. and Pr., 63; 25 Cyc., 484; Pegram v. Stoltz, 67 N. C., 148.

Tbe authorities seem to agree that charging that another has a loathsome disease such as that described ‍‌‌‌‌​​​‌​​​​‌‌‌​​‌​​​​​​​​‌​‌‌​‌‌​​​​​​​‌‌​‌​​​‌‍in tbe complaint is actionable (Koucher v. Blinn, 23 Am. Rep., 729; Joannes v. Burt, 83 Am. Dec., 626; Watson v. McCarthy, 46 Am. Dec., 380; Williams v. Holdridge, 22 Barb., 398; McDonald v. Nugent, 122 Iowa, 652; Bloodworth v. Gray, 49 E. C. L., 334; Irons V. Field, 9 R. I., 217; Nichols v. Guy, 2 Ind., 82), but that no action can be maintained if tbe charge is that be had tbe disease in time past (Cooley Torts, p. 387; Hale Torts, p. 301; Jaggard Torts, p. 509; Newell S. and L., p. 198; Odgers S. and L., 62; Pike v. Van Worman, 5 How. Pr. R., 176; Carlslake v. Mapleborum, Durf. and East R., 474; Golderman v. Sterne, 73 Mass., 182; Bruce v. Soule, 69 Me. 566; Williams v. Holdridge, 22 Barb., 398; Irons v. Field, 9 R. I., 217; Nichols v. Guy, 2 Ind., 82), to which last proposition we do not commit ourselves without qualification, but if tbe first is true, it would seem that tbe answer substantially admits tbe allegations of tbe complaint, as tbe defendant therein says tbe husband bad the disease and “has given it to bis wife,” which at least admits of tbe construction that it referred, at tbe time of tbe utterance, to tbe prеsent.

If tbe defendant made tbe charge that tbe plaintiff bad tbe disease at tbe time be was speaking, ‍‌‌‌‌​​​‌​​​​‌‌‌​​‌​​​​​​​​‌​‌‌​‌‌​​​​​​​‌‌​‌​​​‌‍tbe law would presume malice, and the burden would be on the defendant tо prove the *59 truth of the charge under the plea of justification (Ramsey v. Cheek, 109 N. C., 273), and as no such plea is relied on, the only issue in that event remaining for thе jury to consider would be the one as to damages, and under this issue the defendant could offer evidence in mitigation. The fact that the charge is made in the form of a “repоrt” or “news,” instead of a direct charge, does not relieve the defendant. Hampton v. Wilson, 15 N. C., 468; Johnson v. Lance, 29 N. C., 457.

The cоrrect issues in actions to recover damages for slander where the words alleged áre actionable per sc and in which justification is not pleaded and privilege is not claimed, are:

(1) Did the defendant speak of and concerning'the plaintiff ‍‌‌‌‌​​​‌​​​​‌‌‌​​‌​​​​​​​​‌​‌‌​‌‌​​​​​​​‌‌​‌​​​‌‍the words in substance alleged in the complaint ?

(2) If so, what damage is the plaintiff entitled to recover?

If the first issue is answered “No,” the case is at an end. If answered “Yes,” the law, in the absence of justification, says that the charge is false and malicious, and it is then the duty of the jury to award compensatory damages, and they may, in addition, award punitive damages if there is actual malice, which may be inferred by the jury in some cases from the circumstances. Stanford v. Grocery Co., 43 N. C., 419.

If justification is pleaded the issues are:

(1) Did the defеndant speak of and concerning the plaintiff the words in substance as alleged in the сomplaint?

(2) If so, were they true?

(3) What damages, if any, is plaintiff entitled to recover?

If the first issue is answered “No” or the second “Yes,” there can be no recovery; and if cthe first is answered ‍‌‌‌‌​​​‌​​​​‌‌‌​​‌​​​​​​​​‌​‌‌​‌‌​​​​​​​‌‌​‌​​​‌‍“Yes”.and the second “No,” the jury may award damages. This is true beсause the utterance of words actionable per se implies malice, and in the absence of a plea of justification, or when the plea is entered and the issue is answered against the defendant, the law says the words are false.

There are many exceptions to evidence, which it might be well to consider, hut we cannot do so without referring tо the evidence, and it is so revolting that it ought not to he in our reports except from absolute necessity. A new trial is ordered.

New trial.