Ferrell v. . Siegle

Clarkson, J. The evidence introduced by plaintiff sustained fully the allegations of the complaint that the defendant had spoken on several occasions to different persons, and in divers places, that plaintiff, “Ferrell has been stealing electricity from the Savona Manufacturing Company, for the past seven years and he ought to be in the penitentiary.” It was also in evidence that defendant had likewise charged plaintiff, in the presence of several persons, of stealing towels, cloth, linen and lumber from the manufacturing company. Defendant charged’ also that plaintiff stole most of what he owned from the manufacturing company. That in an effort to obtain testimony to the above effect, defendant had tried to bribe a person to swear falsely by attempting to give her $25.00.- It was in evidence that he used his position in an attempt to force employees to give false evidence against plaintiff and employees were discharged when they would not testify to the charges made by defendant against plaintiff. That he tried to hire employees to testify to help defendant convict plaintiff. The plaintiff testified that he ran a cafe which was an aid to the mill and that Mr. Lima, the president of the mill, so considered it and allowed him to use the electricity. He denied that he had ever stolen *105 anything from the manufacturing company. Plaintiff further testified as to the damage done him by the newspaper publicity, he was blacklisted. He testified to his mental and physical suffering, humiliation, had a nervous breakdown, had considerable of his property which he owed money on swept away, by reason of the slander and loss of position was unable to make payments. He had been working at the mill about 15 or 16 years, for the last 10 years assistant superintendent at a salary of $2,950.00 a year. Had to leave on account of the charges made against him. “He caused me to lose my job.” Defendant would not allow the mill employees to patronize his cafe. The plaintiff showed, by numerous witnesses, that his general reputation was good. The defendant introduced no evidence. The court below charged the jury the law of slander applicable to the facts, in part, as follows: “A defamation made by word of mouth tending to injure or disgrace the person of whom the words are spoken. In order to constitute slander, the words must not only be false but must be malicious — and the maliciousness means, gentlemen of the jury, not always actual malice but the law may imply malice from the words spoken and the court charges you that when the crime of which the plaintiff is charged is an infamous crime, such as larceny, that in law is what is known as words that are actionable per se, that is, within themselves; and where a person charges one with the crime of larceny, the court charges you, that is an infamous crime and that those words are actionable per se and the court charges you from that the law implies malice, not necessarily ill-will, but it means an act intentionally and wrongfully done by one person to another without just cause or excuse and when those facts exist, the court charges you, you may give compensatory damages to the plaintiff or actual damages. With the proof of actual damage, the law infers malice and malice implies damage, that is, you may give the plaintiff in compensatory damages, you may give him the damage of pecuniary loss, for mental and physical suffering and for humiliation that would naturally follow by one party making this charge against another. But the court further charges you that before you can give punitive damages or vindictive damages, which are sometimes called ‘smart money/ that you must find there was actual malice, ill-will between the parties, or, the words and language must be uttered under such circumstances as to show total and utter disregard for the rights of the other party. Under those circumstances the court charges you, you can render punitive damages, that is damages to punish the defendant for his conduct, that is what punitive damages are.” Fields v. Bynum, 156 N. C., p. 413; Elmore v. R. R., 189 N. C., 658; Sawyer v. Gilmers, Inc., 189 N. C., 7; Swain v. Oakey, 190 N. C., 113; Tripp v. Tobacco Co., 193 N. C., 614; Pentuff v. Park, 194 N. C., 146. *106 Numerous exceptions and assignments of error are set forth in the record. Rule of Practice in the Supreme Court, part of sec. 28 (192 N. C., p. 853), is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” In re Fuller, 189 N. C., 509. The record of summons, return of notice of appeal to the Superior Court by the justice of the peace, judgment of the Superior Court in case of Savona Manufacturing Company v. A. 0. Ferrell, was introduced in evidence by plaintiff. The return shows: “The plaintiff complained through J. E. Siegle, vice-president of the corporation, that the defendant, A. 0. Ferrell, was due Savona Manufacturing Company, the sum of $130.00 for electric current used in defendant’s dwelling-house and in his cafe. The defendant, in person, denied the indebtedness to Savona Manufacturing Company, the plaintiff, and testified that the current was a gift of the plaintiff corporation. I rendered judgment in favor of Savona Manufacturing Company, plaintiff, against A. 0. Ferrell, defendant for $76.00, with interest on $76.00 from 13 April, 1926, until paid, together with $3.60 cost in this action.” The judgment in the Superior Court shows that the verdict of the jury was to the effect “that the defendant was not indebted to plaintiff in any amount.” These records were introduced by plaintiff, and defendant, in apt time, excepted and duly assigned error. “In the jurisdictions where punitive damages are allowed there is a difference of opinion as to the necessity of evidence of actual or express malice to support a finding of such damages, some courts holding that evidence of express malice is necessary; that the injury must result from a wilful wrong or conscious indifference to results. The malice in such cases may be proved directly or indirectly; that is by direct evidence of the evil motive and intent, or by legitimate inference to be drawn from other facts and circumstances in evidence, by evidence of personal ill-will or animosity on the part of the defendant, or may be inferred where the libelous article was recklessly or carelessly published.” Newell, Slander and Libel (4 ed.), part sec. 727, p. 816. See Fields v. Bynum, supra. In Fields v. Bynum, supra, p. 419, it is said: “His Honor further charged that if the defendant was not actuated by actual malice the plaintiff can recover only compensatory damage. This is a clear and correct statement of the law. Odgers, p. 291; 18 A. & E. Enc., p. 1091, and cases cited; Newell, p. 892.” In Tripp v. Tobacco Co., supra, p. 617, it is said: “Punitive, vindictive or exemplary damages, sometimes called smart money, are allowed in cases where the injury is inflicted in a malicious, wanton and reckless *107 manner. The defendant’s conduct must have been actually malicious or wanton, displaying a spirit of mischief towards the plaintiff, or of reckless and criminal indifference to his rights,” citing numerous authorities. The court below charged the jury: “The plaintiff further contends that there was actual malice in this case, says that the defendant was the moving party in prompting this company to sue him for this electricity that they claimed was unlawfully taken and property that they claimed he had unlawfully taken from this company and the plaintiff says he brought this suit to court and failed to sustain it, that the jury found in favor of the plaintiff. Those are circumstances you may take in consideration upon the question of actual malice.” The defendant excepted and assigned error to this portion of the charge. The above exception is the only one which defendant, appellant, sets out in his brief and that complies with the rule. It will be noted that the court below charged the jury that before they could give punitive damages “that you must find there was actual malice,” etc. The charge in reference to the record in the civil action, distinctly says: “Those are circumstances you may take in consideration upon the question of actual malice.” Under the authorities cited punitive damages could not be awarded unless actual malice was proved. It was said in Elmore v. R. R., 189 N. C., p. 674: “There was no separate issue as to punitive damages, and on the record there is no way of ascertaining if any of the damages awarded plaintiff were punitive.” Harris v. Singletary, 193 N. C., p. 589. The plaintiff prayed for $10,000 actual damage and $5,000 punitive damages. The plaintiff was awarded $6,750 damages. The defendant requested no separate issue as to punitive damages. It is incumbent on defendant, appellant, to show error. The exceed-f ingly interesting discussion by the parties to this action in their briefs as to the competency of the evidence in the civil action and the charge of the court below, it is not necessary to consider on the present record. For the reasons given, there is No error.