Baker v. Winslow

• Citation: 113 S.E. 570,184 N.C. 1
• Decision Date: 13 September 1922
• Docket Number: 21.
• Parties: BAKER v. WINSLOW.
• Court: United States State Supreme Court of North Carolina

113 S.E. 570

184 N.C. 1

BAKER v. WINSLOW.

No. 21.

Supreme Court of North Carolina

September 13, 1922

Appeal from Superior Court, Pasquotank County; Allen, Judge.

Action by J. L. Baker against J. D. Winslow. From judgment for plaintiff, defendant appeals. No error.

In an action for slander, proper issues are whether defendant spoke of and concerning plaintiff the words alleged in substance and, if so, what damage plaintiff was entitled to recover with the further issue, when justification is pleaded whether the words spoken were true.

This is an action of slander.

Plaintiff alleged, in his complaint: That he resides in Pasquotank county, and has lived there since he was 12 years of age, he now being 52 years old, and that he has always borne a good character and reputation among his neighbors and in the community where he made his home, and that he deserved the same. That the defendant resides in Elizabeth City, North Carolina, and has for a number of years. That in December of the year 1920 the defendant came to the home of the plaintiff, and in the presence of John Baker and divers other persons spoke of and concerning the plaintiff in the following language: "You are stealing my corn and carrying it away"--and defendant asked the plaintiff didn't he (plaintiff) promise not to move any of the crops before he had settled up with him (defendant), and plaintiff replied: "I have not removed an ear of corn Mr. Winslow." Defendant replied: "You are the lyingest and most vicious old devil I ever met up with--you have been stealing my rent corn all the year and attending your crop on it, and lying about it. You are a damned old lying thievish rascal." The plaintiff ordered the defendant to go into the road, and he left and went into the road, and then returned and said: "I hate to say so, but you are a damned old lying son of a bitch." That the defendant intended to charge, and did charge, this plaintiff as being a thief, and guilty of the high crime of larceny. That the defendant intended to charge, and did charge, the plaintiff with the crime of larceny, to humiliate and defame and ruin his good name and character among his fellowmen. That the charges made by the defendant were false and malicious and were made for the purpose of humiliating and degrading the plaintiff, and to ruin his good name and fame in the community in which he lives. That by reason of the defendant's malicious, slanderous, and false charges made against this plaintiff he has been greatly damaged. Plaintiff further alleges that he has suffered damages in a large sum, for which he prays judgment. The charge relating to stealing the crops grew out of the relations between the parties, the defendant being the landlord, or principal, and the plaintiff his tenant, or cropper; the charge being that plaintiff had stolen a part of the crop which belonged to the defendant.

Defendant answered and denied the alleged slander. He admitted that the plaintiff now resides in Pasquotank county, N. C.; that the defendant had not sufficient knowledge or information to form a belief of the other allegations set out in the complaint, as to the plaintiff's former character and reputation, and therefore denies the same. Defendant then answers further that, again insisting that he had made no such charges against the plaintiff as outlined and set forth in the complaint, this defendant insists that each and every utterance he has made of and concerning the plaintiff at any time has been only of such character as is consistent with the truth and was true in every particular; that plaintiff, while a tenant of defendant, without paying his rent and advancements, and without notifying defendant, and against defendant's express orders and in violation of his agreement, had removed or caused or permitted to be removed, a part of the crops. All of which this defendant pleads in mitigation, and pleads, as well, the truth of any utterances made by him in justification and bar of plaintiff's right of recovery.

There was evidence tending to support the allegations and denials of the respective parties. The jury returned the following verdict:

"(1) Did defendant, in substance speak of the plaintiff the language alleged in the complaint? A. Yes.

(2) If so, was same false? A. Yes.

(3) What damages, if any, is plaintiff entitled to recover? A. $1,925.00."

Judgment was entered upon the verdict, and the defendant appealed after assigning errors.

Ehringhaus & Small, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellee.

WALKER, J. (after stating the facts as above).

We will consider only the exceptions mentioned and discussed in the appellant's brief; the others being abandoned either expressly or by the terms of our rule. Rule 34 (174 N.C. 837, 110 S.E. vii); State v. Coble, 177 N.C. 588, 99 S.E. 339; State v. Henderson, 180 N.C. 735, 105 S.E. 339.

The defendant's first exception, as stated in the record and his brief, was taken to that part of the charge of the court as to the damages, the particular ground of the objection being that the court, in its instructions, permitted the jury to include in the damages those of the plaintiff's mental anguish or suffering. The charge is clearly sustained by the authorities. In Fields v. Bynum, 156 N.C. 413, 72 S.E. 449, it being an action for slander, we held that--

"General damages include actual or compensatory damages, and embrace compensation for those injuries which the law will presume must naturally, proximately, and necessarily result from the utterance of words which are actionable per se, such as the charge made in this case. Such damages include injury to the feelings and mental suffering endured in consequence. General damages need not be pleaded or proved. 18 Am. & Eng. 1081, 1082, 1083, and cases cited in notes."

That case was approved in Barringer v. Deal, 164 N.C. 246, 80 S.E. 161, which also was an action for slander. In our case the verdict finds that the words, which in law, are actionable per se, were uttered by the defendant, and that they were false. The law therefore implies malice, which entitles the plaintiff to actual or compensatory damages. Malice, in this connection, and within the scope of the issues, does not necessarily mean personal ill will, but a wrongful act, knowingly and intentionally done the plaintiff without just cause or excuse, and the law implies this kind of malice in actions for slander when the words falsely spoken of and concerning the plaintiff are actionable per se. But punitive or exemplary damages also may be awarded, in the sound discretion of the jury, and within reasonable limits, but the right to punitive damages does not attach, however, as a conclusion of law, because the jury have found the issue of malice in such action against the defendant. The right under certain circumstances to recover damages of this character is well established with us. But they are not to be allowed unless there is an element of fraud, malice, gross negligence, insult, or other cause of aggravation in the act which causes the injury. Holmes v. Railroad Co., 94 N.C. 318. They are not to be included in the damages by the jury as a matter of course simply because of the slander, but only when there are some features of aggravation, as when the wrong is done willfully or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff's rights. Ammons v. Railroad Co., 140 N.C. 200, 52 S.E. 731 (majority opinion by Justice Hoke); Stanford v. Grocery Co., 143 N.C. 419, 427, 55 S.E. 815. The rule as to compensatory damages is also stated there. As held by the Chief Justice in Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 66 L. R. A. 648, where the facts and nature of the action so warrant, actual damages include pecuniary loss, physical pain, and mental suffering. And again:

"Compensatory damages include all other damages than punitive, thus embracing not only special damages as direct pecuniary loss, but injury to feelings, mental anguish," etc.--citing 18 Am. & Eng. Enc. (2d Ed.) 1082; Hale on Damages, pp. 99, 106.

And, as directly pertinent to the charge upon this question to which exception was taken, we may conveniently and appropriately refer now to the Holmes Case, supra, where it was held that if there is rudeness or insult or aggravating circumstances calculated to humiliate or disgrace the plaintiff, or party injured, punitive damages may be added to those which are merely actual or compensatory. Rose v. Railroad, 106 N.C. 170, 11 S.E. 526; Knowles v. Railroad, 102 N.C. 66, 9 S.E. 7. Other cases to the same effect upon the questions of compensatory and vindictive or punitive damages in actions, and especially in slander, are Hamilton v. Nance, 159 N.C. 56, 74 S.E. 627, Ann. Cas. 1914A, 1253; Cobb v. Railroad Co., 175 N.C. 132, 95 S.E. 92; Hayes v. Railroad Co., 141 N.C. 199, 53 S.E. 847; Smithwick v. Ward, 52 N.C. 64, 75 Am. Dec. 453; Bowden v. Bailes, 101 N.C. 612, 8 S.E. 342; Cotton v. Fisheries Products Co., 181 N.C. 151, 106 S.E. 487. The court, by Justice Stacy, in the recent case of Cotton v. Fisheries Products Co., supra, said:

"The defendants' eighth and last exception relates to the charge on punitive damages. The basis of this assignment is that there is no evidence from which the jury would be justified in awarding such damages, and that it was therefore error to instruct them upon the subject. We think his honor properly submitted this phase of the case to the jury for their consideration. Not only did the language of defendant's employees amount to a charge of larceny, actionable per se under our law, but the accompanying acts in causing plaintiff's goods to be opened publicly and

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