Swain v. Oakey

• Decision Date: 16 September 1925
• Docket Number: (No. 57.)
• Citation: 129 S.E. 151
• Parties: SWAIN . v. OAKEY.
• Court: North Carolina Supreme Court

129 S.E. 151

(190 N. C. 113)

SWAIN .

v.OAKEY.

(No. 57.)

Supreme Court of North Carolina.

Sept. 16, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First Series, Actual Malice; Malice in Fact; Malice in Law; First and Second Series, Implied Malice.]

Appeal from Superior Court, Nash County; Sinclair, Judge.

Action by W. S. Swain against J. T. Oakey. From an order of execution against the person of defendant, he appeals. Reversed.

The following is the statement of case on appeal:

"This was a motion for an order to issue execution against the person of the defendant, heard on appeal from the clerk by Hon. N. A. Sinclair, judge presiding, at the January term, 1925, of Nash superior court.

"May 16, 1921, the plaintiff, W. S. Swain, brought an action in the superior court of Nash county against J. T. Oakey, the defendant above named, for the recovery of damages for injury to his character by reason of certain alleged slanderous utterances of the defendant set out in the complaint, and which complaint will be sent up with, and is intended to be taken as part of, this statement of case on appeal.

"The defendant, J. T. Oakey, in his answer, likewise intended to be taken as a part of his statement of ease on appeal, denied that he had spoken the alleged slanderous words of the plaintiff, and denied that he had any ill will or malice towards the plaintiff in the action. The action was tried before the Honorable O. H. Allen, judge presiding, and a jury, at the October term, 1924, of the superior court.

"The following issues were eliminated from the pleadings and submitted to the jury, to wit:

" 'Q. Did the defendant, in substance, speak of the plaintiff, the language alleged in the complaint? Answer: Yes.

" 'Q. What damage, if any, is the plaintiff entitled to recover? Answer: $1,000.'

"On the coming in of the verdict, his honor, Judge Allen, rendered the following judgment:

" 'This is an action for injury to character, arising from slanderous utterances made by defendant, of and concerning the plaintiff, as alleged in the complaint. The cause having been tried by the jury at this term, and the jury having answered the issues in favor of the plaintiff as shown by the records, it is now ordered and adjudged: That the plaintiff recover of the defendant the sum of $1,000, and the costs of this action as taxed by the clerk.

'"O. H. Allen, Judge, etc'

"Thereafter, on December 12, 1924, plaintiff, after due notice in writing, moved before the clerk for an execution against the person of the defendant. The clerk, after hearing the motion, ordered execution to issue against the person of the defendant, and from such order of the clerk the defendant excepted and appealed to the judge in term time.

"The appeal from the clerk was heard at the January term, 1925, as above stated. His honor, Judge Sinclair, ordered and adjudged that execution should issue in accordance with plaintiff's motion, when requested by him upon the judgment referred to in said motion against the person of the defendant, J. T. Oakey, commanding the sheriff to seize the person of said defendant and safely hold him until said judgment, interest, and costs be paid, or defendant be otherwise discharged according to law from this judgment.

"The defendant duly excepted to said judgment, assigned error, and appealed to the Supreme Court.

"The assignments of error are as follows:

"(1) For that his honor signed the judgment set out in the record, directing execution to issue against the person of the defendant.

"(2) For that his honor erred in holding as a matter of law that the plaintiff, W. S. Swain, was entitled under the issues submitted to the jury, the answer thereto made by the jury, and the judgment at the October term, 1924, for execution against the person of the defendant, J. T. Oakey."

Thorne & Thome, of Rocky Mount, for appellant.

CLARKSON, J. The motion for arrest of defendant is based on C. S. 768, subsec. 1, which is as follows:

"The defendant may be arrested, as hereinafter prescribed, in the following cases:

"1. In an action for the recovery of damages on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for injury to person or character, or for injuring, or for wrongfully taking, detaining or converting real or personal property."

In the present case, the order of arrest is founded on an action for injury to character —slander, a tort, an action ex delicto.

In slander, malice must be shown. There are two kinds: (1) Implied, "malice in law"; (2) actual, "malice in fact." Malice may be implied or presumed from the use of certain words, as charging a person with a felony—the words are actionable per se, and by the use of the words the law presumes, or implies malice—or there must be actual malice, sometimes termed particular malice, which is ill will, grudge, desire to be avenged on a particular person.

Newell, Slander and Libel (4th Ed.) part section 271, defines malice:

"The word malice as a term of law has a meaning somewhat different from that which it possesses in ordinary parlance. In its ordinary sense 'malice' denotes ill will, a sentiment of hate or spite, especially when harbored by one person towards another. The word is so employed in the well-known sentence in the litany of the Church of England, 'Prom envy, hatred and...