Payne v. Thomas

• Decision Date: 13 November 1918
• Docket Number: 390.
• Citation: 97 S.E. 212,176 N.C. 401
• Parties: PAYNE v. THOMAS.
• Court: North Carolina Supreme Court

97 S.E. 212

176 N.C. 401

PAYNE v. THOMAS.

No. 390.

Supreme Court of North Carolina

November 13, 1918

Appeal from Superior Court, Guilford County; Shaw, Judge.

Civil action by J. W. Payne against A. R. Thomas, heard upon demurrer. The demurrer was overruled. Defendant appealed. Demurrer sustained, and amendment to complaint allowed. Error.

In an action for slander, where alleged slanderous words charged bastardy, but did not, of themselves, charge indictable offense, plaintiff could not recover, without alleging and proving special damage.

S. B Adams and Brooks, Sapp & Kelly, all of Greensboro, for appellant.

W. P Bynum and R. C. Strudwick, both of Greensboro, for appellee.

BROWN J.

Plaintiff sues to recover damages for slander. The complaint charges that defendant spoke of and concerning the plaintiff certain false, slanderous, and defamatory words, viz. "Mamie (meaning the said Mamie Thomas) says that Payne (meaning the plaintiff) is the father of her child," and also at the same time and place defendant spoke of and concerning the plaintiff, in the presence and hearing of the said Munford Huffines, the false statements and defamatory words in substance as follows, to wit:

"Payne (meaning the plaintiff) came over about some tobacco. He (meaning the plaintiff) got it then. He (meaning the plaintiff) went off to the pack house, and stayed about half a day, and got it again, and then went home. Payne (meaning the plaintiff) was drinking. She (meaning the said Mamie Thomas) would or could take the baby to Payne's house (meaning the home where plaintiff and his family lived) and say: 'Here is me and my baby. What are you going to do with us?' "

The defendant demurred because the complaint fails to allege and to set out any special damage.

The words recited in the complaint are not per se actionable. They do not of themselves charge an indictable offense involving moral turpitude. They charge in substance bastardy, which is not an indictable offense, and does not carry with it infamous punishment, although they involve moral turpitude. Jones v. Brinkley, 174 N.C. 24, 93 S.E. 372; 25 Cyc. 270.

Bastardy is a quasi civil proceeding to enforce a police regulation. State v. Addington, 143 N.C. 683, 57 S.E. 398, 11 Ann. Cas. 314; State v. Currie, 161 N.C. 275, 76 S.E. 694.

In order to recover, plaintiff must allege and prove special damage. In the leading case of Osborn v. Leach, 135 N.C. at page 632, 47 S.E. 811, 66 L. R. A. 648...