Adcock v. Marsh

• Decision Date: 30 June 1848
• Citation: 8 Ired. 360,30 N.C. 360
• Court: North Carolina Supreme Court
• Parties: ANDERSON P. ADCOCK AND WIFE v. JOHN R. MARSH AND WIFE.

8 Ired. 360

30 N.C. 360

ANDERSON P. ADCOCK AND WIFE

v.JOHN R. MARSH AND WIFE.

Supreme Court of North Carolina.

June Term, 1848.

When slanderous words are uttered, the law prima facie implies malice, except in the case of a privileged communication, which is, where the party is acting under a duty either legal or moral, towards the person to whom he makes the communication. In such a case malice must be proved by the plaintiff, and it is a question of fact for the jury.

In an action of tort, where the plaintiff seeks to recover, and is entitled to, vindictive damages, he may give in evidence the pecuuiary circumstances of the defendant.

Appeal from the Superior Court of Law of Chatham County, at the Spring Term, 1848, his Honor Judge PEARSON presiding.

This is an action to recover damages for words spoken. It appears that the plaintiff Joseph Ann, is the seccond wife of the plaintiff Adcock, and that the latter had, by his first wife, two daughters, one of whom was named Sally. It further appears that the first Mrs. Adcock had requested the defendant Emeline Marsh, with whom she was very intimate, to give her daughters advice. Accordingly the defendant, Mrs. Marsh, after the intermarriage of the plaintiffs, advised Sally Adcock, that she and her sister ought not to live at her father's, giving as her reason, that her step mother was reported to be a loose woman, and too intimate with an individual, whose name was mentioned, and advised her to mention it to her father. And to Mary Moore, the maternal aunt of Sally Adcock, she made use of language much stronger. No question is made, but that the words used by Mrs. Marsh, on both occasions, were in themselves, prima facie, actionable.

The plaintiffs declaration contains two counts, one for the words spoken to Sally Adcock, and the other for those spoken to Mary Moore. With a view to vindictive damages, the plaintiffs counsel offered to prove, that the defendant Marsh was worth between two and three thousand dollars. This testimony was objected to, but received by the Court. Much testimony was introduced to discredit Mary Moore, and the defendants counsel insisted that the plaintiffs were not entiled to a verdict on the count framed on the words spoken to her, and asked the Court to charge the jury, on the first count, that the confidential relation existing between the witness Sally Adcock and Mrs. Marsh, and the occasion for using the words, rebutted the implication of malice. The Court refused so to charge, but instructed the jury, that when slanderous words were spoken, malice was implied, unless the occasion and relation of the parties rebutted the implication, and that in this case there was no evidence showing such an occasion for speaking the words, or such a relation between the defendant Emeline and Sally Adcock, as would rebut the implication of malice. For supposing the mother of Sally Adcock had requested Mrs. Marsh to give her daughters advice, still as their father had placed over them, by his second marriage, a step mother, there was no excuse in law for Mrs. Marsh speaking to the witness the slanderous words of the plaintiff, however much it might mitigate the damages.

The jury returned a verdict for the plaintiffs and the defendants moved for a new trial, because the Court received improper evidence, and for error in law in the charge. From the judgment on the verdict the defendants appealed.

McRae and Waddell, for the plaintiffs .

Kerr, for the defendants .

NASH, J.

We are relieved from any consideration of the case, growing out of the charge contained in the second count in the declaration. The case, as presented to us, is confined to the first count, for it is the error committed, or alleged to be committed by the presiding Judge in considering the case, under that count, to which our attention is directed.

We think his Honor was correct in refusing to give the charge requested, and that he erred in the latter part of his instruction upon this point. The instruction required assumed, that the question was one purely and entirely of law, for it was, “that the confidential relation existing between the defendant, Mrs. Marsh, and the witness, and the occasion for using the words, rebutted the implication of malice.” This instruction, the Court could not give, because it involved an enquiry of fact, which it was the province of the jury alone to make. And we think his Honor, in instructing the jury “there was no evidence showing such an occasion for speaking the words, or such a relation between the witness and the defendant, as would rebut the implication of malice,” erred, for the same reason, because in this case, malice, was a question of fact for the jury, which his Honor could not decide. He must have meant, in the latter part of this charge, that, although the mother of Sally Adcock, had requested Mrs. Marsh to advise her daughters, that did not make her communication a privileged one. In this there was error. We hold that it was a privileged communication, if made by Mrs. Marsh in good faith, and of the bona fides the jury were the exclusive Judges, and it ought to have been left to them. The idea seems to have been, that the communication was not a privileged one, because the defendant had no interest in the matter, and stood in no relationship to the witness, but was, in every respect, a volunteer. In general, when words slanderous in themselves are uttered of another, whether written or verbal, the law implies malice. But there is a class of cases, in which, although the words are actionable, yet from the relation in which the party publishing stands to the individual, to whom they are published, or to the subject matter, the idea of malice is rebutted, and the words cease to furnish the foundation of an action. These are called privileged communications, that is the party making them, has, in law or in morals, the right to make them; but, if he acted in bad faith, and used his privilege as a cloak, under which to cover his malice, the communication ceases to be a privileged one, and he must answer the consequences. And whenever, in an action for slander, the defence rests upon the question of express malice, on the part of the defendant, the jury are the sole triers. We have found no case exactly like this, but several, in which the principles governing them were similar to those arising here. In Wright v. Woodgale, 2 C. M. & R. 513, and also...