Fields v. Bynum

• Decision Date: 25 October 1911
• Citation: 72 S.E. 449,156 N.C. 413
• Parties: FIELDS v. BYNUM.
• Court: North Carolina Supreme Court

72 S.E. 449

156 N.C. 413

FIELDS v. BYNUM.

Supreme Court of North Carolina

October 25, 1911

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

Action by Henry T. Fields against Thomas M. Bynum. From a judgment for plaintiff, defendant appeals. Affirmed.

In slander, in which the answer merely alleged that the allegations of the complaint as to the utterance of slanderous words were untrue, and denied any damage to plaintiff, the court submitted three special issues, to wit whether defendant spoke to plaintiff in the hearing of others the words alleged in paragraphs 3 and 4 of the complaint, or such words in substance, and what damage, if any, plaintiff was entitled to recover. Held, that the special issues submitted were proper; defendant being entitled thereunder to offer evidence of any defense alleged by him.

These issues were submitted to the jury. "(1) Did the defendant speak to the plaintiff, in the presence and hearing of Willie J. Bright and others, the words set out in paragraph 3 of the complaint, or words of the same substance? Answer: Yes. (2) Did the defendant speak to the plaintiff, in the presence and hearing of Willie J. Bright and others, the words set out in paragraph 4 of the complaint, or words of the same substance and meaning? Answer: Yes. (3) What damage if any, is plaintiff entitled to recover? Answer: $500 (five hundred dollars)." From the judgment rendered, the defendant appealed.

W. P Bynum, Hayes & Bynum, and Robert C. Strudwick, for appellant.

H. A London & Son, for appellee.

BROWN J.

1. The defendant excepted to the issues, and tendered two others. Those submitted have been practically approved by this court in several cases. McCurry v. McCurry, 82 N.C. 296; Wozelka v. Hettrick, 93 N.C. 10; Rice v. McAdams, 149 N.C. 29, 62 S.E. 774. Under the issues submitted, the defendant had opportunity to present evidence of any defense set up in his answer. Deaver v. Deaver, 137 N.C. 246, 49 S.E. 113.

2. The defendant contends that the occasion when the words were uttered was a privileged one, exempting him from civil liability for their utterance. Defendant tendered certain prayers for instruction, presenting that view, which were refused. We are of opinion that the occasion was not privileged, and that the prayers were properly refused. The contention of the defendant is that he had a direct personal interest in the burning of the mill, although it belonged to Buie, as he was engaged in sawing defendant's timber with it, and another mill had been burned on the same site the June previous; that he sought the plaintiff in good faith, to ascertain who burned the mill, and in the discharge of a private duty in the prosecution of his own interests.

We do not differ with the learned counsel as to the law, but only in its application to the facts of this case. The plaintiff's version of the facts is that the defendant came to his residence and called him out, saying, "You burnt the mill up last night." "I told him I did not. Jim Campbell, Norflus Barber, and Willie Bright were present. Defendant said he would blow my brains out if I opened my mouth; said I was the man that burnt it in June, and, 'I know you did it.' I did not burn either mill." Several witnesses testified to plaintiff's good character. There was no evidence that his character was bad. Defendant testifies: "I then asked him [the plaintiff] about trying to deed the timber to other parties after he had sold it to me; that I believed he had burned the mill and that his neighbors believed it. I never charged him with burning the mill, only as above stated." In order to bring himself within the protection which attaches to communications made in the fulfillment of a duty, the defendant must show something more than an honest belief in the truth of his utterance. He must show that what he said was a communication, made in a sense of duty, with the bona fide purpose of ascertaining the origin of the fire, and that it was made on an occasion which justified the making of it. Dawkins v. Lord Paulet, L. R. 5 Q. B. 102; Newell on Slander, p. 477.

Then, again, where the expressions employed are allowable in all respects, the manner in which they are made public may take them out of the privilege. In the case of spoken words, the defendant must be careful in whose presence he speaks. While the accidental presence of a third person will not always take the case out of the privilege, it is otherwise if the defendant purposely selects an occasion where a number of persons are present. Odgers on Libel and Slander, 199.

It is generally held that answers to questions put by the plaintiff himself will in general be privileged, though made in the presence of third persons. Palmer v. Hammerstone, 1 Cab. & El. 36; Billings v. Fairbanks, 139 Mass. 66 29 N.E. 544. But even in reply to plaintiff's questions the defendant is not protected by privilege, if he repeats, in presence of third persons, charges of a slanderous character which he has previously made. Griffiths v. Lewis, 53 E. C. L. 61; Sanborn v. Fickett, 91 Me. 364, 40 A. 66; 18 Am. & Eng. 1032. Assuming the communication to have been made in manner and form as testified by the plaintiff, it is manifestly not privileged. And we think, taking the defendant's version of the occurrence, it was not a privileged occasion. The response was not elicited in reply to questions asked by plaintiff. Nor is the inference justified that the defendant sought the plaintiff for the sole purpose of ascertaining the origin of the fire. Defendant put no questions to the plaintiff, and asked for no information. According to defendant's own testimony, he did not ask plaintiff if he burned the mill, but at once charged plaintiff with attempting to sell timber which he had already sold plaintiff, and then...