Nissen v. Cramer

• Citation: 10 S.E. 676,104 N.C. 574
• Parties: NISSEN v. CRAMER.
• Decision Date: 15 January 1890
• Court: North Carolina Supreme Court

10 S.E. 676

104 N.C. 574

NISSEN v. CRAMER.

Supreme Court of North Carolina

January 15, 1890

This is an action for slander, tried before MERRIMON, J., at Davidson superior court, at September term, 1889. Upon the trial the plaintiff offered evidence tending to prove that the words charged in the complaint to be slanderous were spoken by the defendant at the time and place mentioned in the complaint in an audible voice, sufficient to be heard in all parts of the room where the same were uttered, in the presence of from 20 to 25 persons, who were assembled in said room, and the witnesses examined, 4 or 5 in number, testified that they did hear said words, the said words being spoken on the trial before Judge DILLARD, referee, on or about the 19th day of April, 1888; and the plaintiff also offered evidence to prove the truth of the evidence given before said referee. It was also in evidence by plaintiff's witness, R. G. Chaney that he (Chaney) was a witness for the plaintiff, and, as such, made an affidavit for plaintiff on the 4th day of August, 1888, in a proceeding by plaintiff in his action against the Genesee Gold-Mining Company to obtain an injunction and attachment, but not in the matter before Judge DILLARD, referee, and that he was after wards, at the instance of the defendant, Cramer, indicted for perjury committed in said affidavit, the said Cramer being the prosecutor in such indictment; that, when returning from March term, 1889, the witness asked Cramer why he (Cramer) was persecuting him (witness) in the perjury case, to which said Cramer replied that he was only doing this to further his cases against Nissen; it appearing also in evidence that this action, and the action of plaintiff against the Genesee Gold-Mining Company, were both pending at the time of said Cramer's declaration to Chaney, but that part of the latter case relating to the said injunction and attachment proceedings had long theretofore been adjusted. The witness Chaney testified that he was not guilty of the crime of perjury imputed to him, and that the indictment was nol pross'd at this term of the court, at the cost of the prosecutor, Cramer. Henry Tysinger was also introduced by plaintiff, and, upon cross-examination by defendant's counsel, testified that he made affidavit for plaintiff on the 4th day of August, 1888, in the said proceedings for injunction and attachment in the case of the plaintiff against the Genesee Gold-Mining Company, and was indicted at the instance of the defendant, Cramer, for alleged perjury in making said affidavit, the said Cramer being prosecutor in the perjury indictment. Witness testified he was not guilty of the perjury for which he had been indicted; that he had been ready for trial at the term when the indictment was found, and at the present term; and that the case had been continued at the instance of the prosecutor, Cramer, at both terms, and was still pending. The plaintiff, for the purpose of showing malice on the part of defendant, offered in evidence a letter, dated July 26th, 1889, written by Cramer to Talbott & Sons, of Richmond, Va. The court excluded the etter on the ground of immateriality, and plaintiff excepted. The following is a copy of the said letter "Thomasville, N. C., July 26th, 1889. Messrs. Talbott & Sons, Richmond, Va.--Gents: As you perhaps know, one George H. Nissen depends on settling the claim you have against him out of what he hopes to beat my company in a suit now pending, but my company do not propose to be swindled out of a cent in the way he proposes, except at the end of the law, no matter how much hard swearing is done, and the end of this litigation no one can foresee. I am personally tired of being annoyed by attending court after court, and individually I am willing to submit to a wrong than the annoyance. Nissen owes debts enough to cover the whole matter, which he has mortgaged. If you and the others would prefer immediate settlement, and would write me the least you would take in cash at once, and I am satisfied, I will send check and lose amount myself, just to get rid of the court annoyance. Let me hear from you as soon as practicable, for I may have to go to Mexico soon, and be gone until court. Respectfully, JOHN T. CRAMER." It appeared in evidence that the defendant, Cramer, was the manager of the Genesee Gold-Mining Company, and was present, as the agent of said company, at the trial between the plaintiff and the said company before the said referee, advising the counsel of the company, Messrs. Robbins & Raper and M. H. Pinnix, who were present, representing the company, at the time the alleged slanderous words were spoken. The charge is incorporated in the opinion of the court. Plaintiff excepted to the charge. Verdict and judgment for defendant. Plaintiff appeals.

In an action for slander against the agent of a corporation for remarking in a trial in court in relation to the testimony of plaintiff, "It is a lie," a letter written by him to a third person, saying that plaintiff hopes to settle a claim held against him by such third person out of what he expects to beat defendant's company, but that the company does not propose to be swindled, etc., is incompetent to show malice on the part of defendant.

L. M. Scott and W. S. Ball, for appellant.

Robbins & Raper and M. H. Pinnix, for appellee.

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

The plaintiff's exceptions raise the questions whether the defendant, representing a corporation as agent at the trial before a referee, is protected in saying of the testimony of the plaintiff, who had just been examined as a witness "That's a lie," when counsel were present, also appearing for the corporation, and whether, under the admitted circumstances, the privilege, if it existed at all, was absolutely, or only prima facie, a protection; for, if there was only a presumption of good faith, the plaintiff might rebut it by showing the existence of actual malice when the language was used. Chief Justice RUFFIN, in Briggs v. Byrd, 12 Ired. 380, says that the phrase "privileged communication" means words "uttered in a legal proceeding, or on some other occasion of apparent duty, which prima facie imports that the party was actuated by a sense of duty, and not by the malice which is generally to be implied from speaking words imputing a crime to another." It was conceded on the argument, and at all events it is settled law, that one who appears in person, on his own behalf or on behalf of another, or counsel representing a party on the trial of an action, may say, in the progress of the trial, anything in reference to the character or conduct of the opposing party or witnesses that is relevant and pertinent to the question or issue before the court or jury, without incurring any liability whatever in an action for slander predicated upon the language so used. The occasion gives absolute protection, if the utterances are not irrelevant. State v. Leigh, 3 Dev. & B. 127; Shelfer v. Gooding, 2 Jones, (N. C.) 175; Townsh, Sland. & Lib. § 224; Ring v. Wheeler, 7 Cow. 731; Jennings v. Paine, 4 Wis. 372; Lester v. Thurmond, 51 Ga. 118. The inference of malice is not drawn, as a matter of law, when irrelevant words are uttered or spoken by parties or counsel in the due course of judicial proceedings; and such words "are not actionable unless it affirmatively appears that they were malicious, and without reasonable or probable cause." Lawson v. Hicks, 38 Ala. 279. In Briggs v. Byrd, supra, this court held that there was a presumption of good faith in favor of one who made a verbal...