Bird v. Hudson

• Citation: 18 S.E. 209,113 N.C. 203
• Court: United States State Supreme Court of North Carolina
• Decision Date: 21 November 1893
• Parties: BIRD. v. HUDSON et al.

18 S.E. 209

113 N.C. 203

BIRD.

v.HUDSON et al.

Supreme Court of North Carolina.

Nov. 21, 1893.

Libel—Evidence—Qualified Privilege — Malice—How Proved—Comment of Counsel—Objections not Raised Below.

1. An alleged libelous circular charged that plaintiff, the Democratic candidate for tax collector, had requested M., one of the leaders of the Populist party, to help secure plaintiff's nomination on the Populist ticket. Plaintiff testified that he was present at the Populist meeting, but denied that he solicited the nomination, and that M. asked him if he wanted the nomination, and that he told him he would not receive it except from the Democratic party. Held, that such conversation was competent as corroborative of plaintiff's testimony.

2. Testimony of a witness for plaintiff, who was also a candidate for office on the Democratic ticket, that defendant requested him not to support plaintiff, and said that, if witness did support plaintiff, defendant would not vote for witness, was competent to prove defendant's malice towards plaintiff.

3. in an action for slander, defendant may be asked, on cross-examination, if he did not compromise an action by him for slander, for $175, without requiring defendant in that action to retract the charge, as such question is competent as tending to impeach him as a witness to show he had put a low estimate on his own character.

4. Comment of counsel, not objected to when made, cannot be complained of on appeal. Hudson v. Jordan, 12 S. E. Rep. 1029, 108 N.C. 10, followed.

5. Where the circular was a publication of qualified privilege, and charged plaintiff with crime, the language of the circular was properly considered in determining whether defendant was actuated by malice in making it, since insuch case plaintiff need not prove malice by extrinsic evidence, but may rely on the words of the libel itself for such proof.

Appeal from superior court, Wayne county; George A. Shuford, Judge.

Action by J. E. Bird against C. J. Hudson and others for libel. There was judgment for plaintiff, and defendants appeal. Affirmed.

An alleged libelous circular, published by defendants concerning plaintiff, the Democratic candidate for tax collector, charged that he had requested McCullen, a leading member of the Populist or Third party, to help him secure the nomination for tax collector on that ticket. Plaintiff was offered as a witness in his own behalf, and admitted that he was present at the Third party meeting, but stated that he did not then, or at any other time, try to secure a nomination for tax collector at their hands, and testified as follows: "On the day of said meeting, Mr. McCullen asked if I wanted the nomination for tax collector. I asked him what he meant, —was it with reference to the meeting to be held this P. M.? He said, 'No.'

I told him I would not accept the nomination except from the Democratic party." The witness further stated that he did not know at the time whether McCullen was a Democrat or a Populist, but that he had afterwards learned that McCullen had voted the Democratic ticket. To the foregoing conversation with McCullen defendants excepted. J. A. Stevens was introduced as a witness for the plaintiff, and testified as follows: "I was a candidate last year on the Democratic ticket, and the plaintiff, Bird, was a candidate on the same ticket. The defendant C. J. Hudson came to me during the campaign, and asked me not to support Bird as the Democratic nominee. I told him that I would have to support Bird, and he then said that if I did he would not vote for me, or any one else who would vote for Bird." This was offered to show malice. Objected to by defendants, objection overruled, and defendants excepted.

Allen & Dortch, for appellants.

W. C. Munroe, for appellee.

CLARK, J. 1. The testimony of the plaintiff touching his conversation with McCullen was competent as corroborative of his testimony on the trial. State v. Whitfield, 92 N.C. 831. There is no exception that the court failed to instruct the jury that they should consider it only in that view, and ft will be presumed that proper instructions were given. State v. Powell, 106 N.C. 635, 11 S. E. Rep. 191.

2. The second exception was abandoned, and, as to the third exception, the testimony of Stevens was clearly competent as tending to prove malice. 13 Amer. & Eng. Enc. Law, p. 431, § 4.

3. The question put to defendant on cross-examination, whether he had not compro mised an action for slander for $175,...