Broadway v. Cope

• Decision Date: 10 April 1935
• Docket Number: 236.
• Citation: 179 S.E. 452,208 N.C. 85
• Parties: BROADWAY v. COPE.
• Court: North Carolina Supreme Court

179 S.E. 452

208 N.C. 85

BROADWAY v. COPE.

No. 236.

Supreme Court of North Carolina

April 10, 1935

Appeal from Superior Court, Davie County; Oglesby, Judge.

Action by J. M. Broadway against Kelly L. Cope. Judgment for plaintiff, and defendant appeals.

No error.

Malice is conclusively presumed from false statement, calculated to injure another in his trade, and hence actionable per se.

This is an action brought by plaintiff against defendant to recover damages for slander to his business.

The plaintiff testified, in part: "On the 18th day of October, 1932, I bought a heifer from Mr. Bud Foster in Rowan County and I butchered her on the 19th day. She was fine and fat and as nice a cow as I ever saw. I do not think she was bitten by a mad dog. I would say she was not. When I purchased her, she was in Rowan County at Bud Foster's home. I inspected her before buying. I butchered the cow on Thursday and in consequence of some word that had gotten out I had a conversation with Mr. Cope. * * * He said he heard I had butchered a mad-dog bitten cow and I said, 'Kelly, if it had been me and I had heard that, and found out that you were butchering a beef I would have told you, but you didn't say a word and drove by and didn't turn your head when I was butchering it.' He never made any answer to that, and I said, 'Kelly, me and you worked together for a long time; I worked for you a long time; you have come to my house at 12 o'clock at night when you wanted me to help you and why did you do that if you thought I was dirty enough to kill a mad-dog bitten cow?' I said, 'That ain't what you thought, you thought you would put this word out on me and steal my trade.' He said he hated the word had gotten out and he would not do anything to hurt me if he knew it, but he did tell it. He said 'I told my wife." D'

Charlie Hepler testified, in part:

"Q. You know Sheriff Cope, do you? A. Yes, sir.

Q. You can state whether or not you heard a conversation by him while talking to Charlie Carter about this cow? A. I heard a small conversation. They were talking and he was talking about it, said he went over in the country to buy a cow and he was telling Mr. McDaniel about it and he told him not to buy that cow, it was neighborhood talk that she had been mad-dog bit, and he said he thought he would go down there and he went, and Mr. Broadway had the cow down there, skinning her, and he didn't buy her; said Mr. McDaniel told him it was neighborhood talk that the cow had been mad-dog bit. That is all I know about it.

Q. Now, where was he? A. He was in his market at North Cooleemee.

Q. Who was he talking to? A. A whole crowd in there; Mr. Carter was in there and I was in there, and I didn't pay attention to who all was in there.

Q. That in his meat market in Cooleemee? A. North Cooleemee.

Q. That was how long after this cow had been butchered by Broadway? A. I don't know exactly how long it was afterwards; that was about the same time. Second or third day, I think, afterwards."

Hill Myers testified, in part: "Q. Well now, at that time or shortly thereafter, did you hear Mr. Cope-were you at Mr. Kelly Cope's meat market? A. Yes, sir.

Q. When was it with reference to the time the cow was butchered? A. Next day.

Q. Now, state what, if anything, you heard Mr. Cope say? A. Mr. Cope asked me had I heard about Mr. Broadway killing a mad-dog bitten cow and I said no, and he says, 'he has'; says, 'I thought I would tell you not buy any meat as a friend; the cow has been mad-dog bit.'

Q. Who else was in there? A. I don't remember now; his wife was in there for one."

The issues submitted to the jury and their answers thereto, were as follows:

"(1) Did the defendant, in the presence and hearing of others, charge the plaintiff with having butchered a cow that had been mad-dog bitten, or words of the same substance and meaning, as alleged in the complaint? A. Yes.

(2) If so, was said charge made by the defendant maliciously with the design and purpose of injuring the plaintiff in his business? A. ------

(3) What actual damage, if any, is plaintiff entitled to recover? A. $250.00.

(4) What punitive damage, if any, is plaintiff entitled to recover? A. ------."

The court below rendered judgment on the verdict. Defendant made several exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be considered in the opinion.

Hayden Clement, of Salisbury, for appellee.

A. T. Grant and B. C. Brock, both of Mocksville, for appellant.

CLARKSON Justice.

At the close of plaintiff's evidence and at the close of all the evidence, the defendant made motions in the court below for judgment as in case of nonsuit. C. S. § 567. These motions were overruled by the court below, and in this we can see no error. The evidence must be taken in the light most favorable to the plaintiff. The plaintiff operated a meat market in Cooleemee, under the name of the "Cooleemee Meat Market." Defendant also ran a meat market in North Cooleemee. They were competitive dealers.

Plaintiff testified: "He said he heard I had butchered a mad-dog bitten cow and I said, 'Kelly, if it had been me and I had heard that, and found out that you were butchering a beef, I would have told you, but you didn't say a word and drove by and didn't turn your head when I was butchering it.' * * * He said he hated the word had gotten out and he would not do anything to hurt me, if he knew it, but he did tell it. He said, 'I told my wife." D'

Hill Myers testified: "Q. Now, state what, if anything, you heard Mr. Cope say? A. Mr. Cope asked me had I heard about Mr. Broadway killing a mad-dog bitten cow and I said No, and he says, 'he has'; says, 'I thought I would tell you not to buy any meat as a friend; the cow has been mad-dog bit." D'

The plaintiff was a butcher. Is the above language actionable per se? We think so. There was no evidence to the effect that plaintiff had butchered a mad-dog bitten cow.

Webster's International Dictionary defines a "butcher" as follows: "One who slaughters animals, or dresses their flesh for market; also, a dealer in meat."

In Pentuff v. Park, 194 N.C. 146, 154, 138 S.E. 616 619, 53 A. L. R. 626, is the following: "An action for libel may always be brought when the words published expose the plaintiff (1) to contempt, hatred, scorn, or ridicule; or (2) are calculated...