Hamilton v. Nance
| Decision Date | 17 April 1912 |
| Citation | 74 S.E. 627,159 N.C. 56 |
| Parties | HAMILTON v. NANCE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Union County; Cooke, Judge.
Action by Lillie A. Hamilton against Eli S. Nance. Judgment for defendant, and plaintiff appeals. New trial ordered.
One who states that another is afflicted with a venereal disease is presumed to be actuated by malice; the burden being on him to prove the truth of the charge under plea of justification.
Adams Armfield & Adams and Stack & Parker, for appellant.
Redwine & Sikes, McNeely & Brooks; and Robinson & Candle, for appellee.
The complaint alleges that the defendant charged that the "news" was that the husband of the plaintiff "had" a venereal disease, naming it, and "has given it to his wife." The answer admits that he said the "report" was that the husband of the plaintiff "has had" the disease named in the complaint, and "has given it to his wife."
The plaintiff tendered the following issue, which the court refused to submit, and the plaintiff excepted: "(1) Did the defendant wrongfully and falsely speak of and concerning the plaintiff language imputing that the plaintiff was afflicted with a venereal disease, as alleged in the complaint?"
His honor submitted the issue, "Did the defendant wrongfully and falsely speak of and concerning the plaintiff" (and then follows the words set out in the complaint), and charged the jury that if the plaintiff had not satisfied them by the greater weight of the evidence that the plaintiff spoke those words to answer the first issue, "No," and the plaintiff excepted.
In our opinion, the ruling was erroneous, and entitles the plaintiff to a new trial. In an action to recover damages for slander the plaintiff is not required to prove the utterance of the exact words set out in the complaint, but must prove the words in substance; and his honor should have so instructed the jury. The issue submitted could not have been answered in favor of the plaintiff, under the instructions of the court if the jury found that the defendant used all the language set out in the complaint, except that he used the word "report," instead of the word "news," which would be contrary to the practice under our system of pleading. Revisal, §§ 515 and 516.
Issues are approved in McCurry v. McCurry, 82 N.C. 296, Wozelka v. Hettrick, 93 N.C. 10, and in Rice v. McAdams, 149 N.C. 29, 62 S.E. 774, submitting the inquiry to the jury as to whether the defendant spoke the words set out in the complaint, "or words of the same substance"; and it is generally held that proof of the words in substance is sufficient. 18 A. & E. Encl. L. 1078; 13 Ency. Pl. & Pr. 63; 25 Cyc. 484; Pegram v. Stoltz, 67 N.C. 148.
The authorities seem to agree that charging that another has a loathsome disease, such as that described in the complaint, is actionable , but that no action can be maintained if the charge is that he had the disease in time past , to which last proposition we do not commit ourselves without qualification; but, if the first is true, it would seem that the answer substantially admits the allegations of the complaint, as the defendant therein says the husband had the disease, and "has given it to his wife," which at least admits of the construction that it referred, at the time of the utterance, to the present.
If the defendant made the charge that the plaintiff had the disease at the time he was speaking, the law would presume malice and the burden would be on the defendant to prove the truth of the charge under the plea of justification (Ramsey v. Cheek, 109 N.C. 273, 13 S.E. 775); and, as no such plea is relied on, the only issue, in that event, remaining for the jury to consider would be the one as to damages, and under this issue the defendant could offer evidence in mitigation. The fact that the charge is made in the form of a "report" or "news," instead of a direct charge, does not relieve ...
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