Oates v. Wachovia Bank & Trust Co.

• Decision Date: 28 June 1933
• Docket Number: 572.
• Parties: OATES v. WACHOVIA BANK & TRUST CO. et al.
• Court: North Carolina Supreme Court

169 S.E. 869

205 N.C. 14

OATES v. WACHOVIA BANK & TRUST CO. et al.

No. 572.

Supreme Court of North Carolina

June 28, 1933

Appeal from Superior Court, Henderson County; Cowper, Special Judge.

Action by William H. Oates against the Wachovia Bank & Trust Company and others. From a judgment of nonsuit, plaintiff appeals.

Reversed.

Whether words, "You know W. O.'s check is no good; all they have is what they get from the old lady, or beat the old lady out of," stated by bank's assistant trust officer to one presenting check, by fair intendment charged maker with having uttered worthless check, held for jury.

When publication, considered in sense in which those hearing it would ordinarily understand it, would bear but one interpretation, court determines whether signification is defamatory.

Civil action for slander. The record discloses that on April 2 1931, the plaintiff, a licensed attorney, who lives in Hendersonville, gave to O. V. Powers, chief of police of that city, a check for $200 drawn upon the Commercial National Bank of Charlotte, N. C., made payable to the order of "cash," and requested, at the time, that the check be not cleared through a Hendersonville bank.

A short time thereafter the chief of police was in Asheville, and knowing that the Wachovia Bank & Trust Company had, in the past, looked after the plaintiff's business in Hendersonville, presented said check to the teller and asked that it be cashed. At first the teller started to cash the check, but, before doing so, went back to the desk where C N. Walker, assistant trust officer and assistant secretary of the corporate defendant, was sitting, and, after conversing with him, called the chief of police over to Walker's desk.

Walker said to Powers in a rough tone of voice and loud enough to be heard by employees and customers of the bank present in the lobby, "You know William Oates' check is no good." Powers replied that the check had been given to him at the instance of Mrs. Oates, and for reasons satisfactory to himself he knew it was good. Walker replied, "Well, all they have is what they get from the old lady," or "beat the old lady out of." Powers, continuing, testified: "It seemed that he was mad at Mr. Oates; did not have any use for him and said it as hateful as he could. He spoke as if he knew the check was no good. His manner was not at all pleasant."

Powers took the check from Walker's hand with the statement, "I will get it cashed somewhere else." He stopped at Fletcher on his way home and had the check cashed by the bank there. It was duly paid by the drawee bank upon presentation, and was good at the time of its execution and delivery.

It was further in evidence that plaintiff's mother had executed a living trust with the corporate defendant, and had sought, on one or two occasions, to modify it for the benefit of the plaintiff, but the corporate defendant had declined to consent to such modification, and the said C. N. Walker was familiar with said trust agreement and acquainted with the affairs of said trust estate.

It is alleged that the animus of the defendants arises from a desire to deprive the plaintiff of certain rights under this trust agreement.

Plaintiff appeals from a judgment of nonsuit entered at the close of his evidence.

R. L. Whitmire, of Hendersonville, for appellant.

M. M. Redden and Shipman & Arledge, all of Hendersonville, and Bourne, Parker, Arledge & DuBose, of Asheville, for appellees.

STACY Chief Justice.

Are the words, "You know William Oates' check is no good; all they have is what they get from the old lady, or beat the old lady out of," viewed in the light of the circumstances under which they were spoken, fairly susceptible of the meaning, within the understanding of those to whom they were addressed or published, that the speaker meant to charge, and, by fair intendment, did charge, the maker with having uttered a worthless check? We think so. Castelloe v. Phelps, 198 N.C. 454, 152 S.E. 163.

It is a misdemeanor for any person knowingly to utter a worthless check in this state. Chapter 62, Public Laws 1927; State v. Yarboro, 194 N.C. 498, 140 S.E. 216. And such act involves moral turpitude if done with intent to defraud. C. S. §§ 4283 and 4173; State v. Yarboro, supra; Jones v. Brinkley, 174 N.C. 23, 96 S.E. 372; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168, 23 Am. St. Rep. 73; Barnett v. Phelps, 97 Or. 242, 191 P. 502, 11 A. L. R. 663; 17 R. C. L. 265, et seq.

Even so, the defendants contend that the charge of uttering a worthless check is actionable per quod and not per se. Deese v. Collins, 191 N.C. 749, 133 S.E. 92; Payne v. Thomas, 176 N.C. 401, 97 S.E. 212; Gudger v. Penland, supra; McKee v. Wilson, 87 N.C. 300; Pegram v. Stoltz, 76 N.C. 349; Hurley v Lovett, 199 N.C. 793, 155 S.E. 875; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; note, 12 Am. Dec. 39 et seq.; 17 R. C. L. 264. The difference between the two is that, if actionable per se,...