Barringer v. Deal

• Citation: 164 N.C. 246,80 S.E. 161
• Parties: BARRINGER et al. v. DEAL.
• Decision Date: 03 December 1913
• Court: United States State Supreme Court of North Carolina

80 S.E. 161

164 N.C. 246

BARRINGER et al.

v.DEAL.

Supreme Court of North Carolina.

Dec. 3, 1913.

1. Libel and Slander (§ 100*) — Actions — Mitigation—Evidence.

In an action for slander where the words were actionable per se, the defendant, not haying pleaded privilege, cannot testify as to his undisclosed motive in uttering the slander, even though it was permissible for him to disclaim malice.

[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 24G-256, 258-272, 291, 322, 323; Dec. Dig. § 100.*]

2. Libel and Slander (§ 101*) — Actions — Damages—Slander Per Se.

When damages are sought for the uttering of words actionable per se, the law presumes damages, and compensatory damages may be awarded without proof of injury where neither privilege nor justification are pleaded.

[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 150, 273, 275-280; Dec. Dig. § 101.*]

3. Trial (§ 257*)—Instructions—Requests.

Prayers for instructions should be handed up at or before the close of the testimony, and, if not handed up until after the conclusion of the charge, they may be refused.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 642-4345; Dec. Dig. § 257.*]

4. Appeal and Error (§ 724*)—Assignments op Error—Sufficiency.

Assignments of error merely referring to exceptions without giving the substance of matters excepted to are insufficient.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.*]

Appeal from Superior Court, Catawba County; Cline, Judge.

Action by Zoe Barringer and husband against E. M. Deal. From a judgment for plaintiffs, defendant appeals. Affirmed.

Councill & Yount, of Hickory, for appellant.

W. A. Self, of Hickory, and Geo. McCorkle and R. R. Moore, both of Newton, for appellees.

CLARK, C. J. 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 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, 72 S. E. 449, 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 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 Folkards, 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...