McCall v. Sustair

Claek, 0. J. This is an action for slander, on an allegation that tbe defendant bad charged tbe plaintiff with stealing cotton, said charge having been made on three several occasions, viz., to John Cochrane, to L. A. Ferguson, and to Charles Simpson. Neither justification nor privilege was pleaded, but a denial of having charged the plaintiff with larceny. [180] Tbe issues submitted were: “Did tbe defendant speak and publish of and concerning tbe plaintiff tbe alleged slanderous words set out in article 1 of tbe complaint witb tbe intent to thereby charge tbe plaintiff with tbe crime of larceny?” This paragraph alleged that tbe charge was made to one John Cochrane. Tbe second issue was in tbe same words as to tbe alleged conversation witb L. S. Ferguson,, and tbe third issue was in tbe same words as to tbe alleged conversation witb Charles Simpson. There was no exception to tbe issues. Tbe judge in charging tbe jury told them that tbe charge of larceny need not be made in express terms . by declaring that tbe person is a thief or that be has stolen, but tbe imputation may be made by tbe use of any apt words which in connection witb tbe other words and in view of tbe circumstances under which they are used naturally import that tbe person spoken of has committed tbe crime of larceny, and that tbe words were used in that sense. And further charged them that if they found “from tbe greater weight of evidence that tbe defendant spoke to or in tbe bearing of John Cochrane words which should be reasonably construed to mean a charge" of larceny of cotton by McCall from J. P. Sustain, and that defendant intended to charge him witb larceny in uttering said words, they would answer the first issue ‘Tes.’ ” Tbe plaintiff excepted because tbe judge inserted tbe words, “and that defendant intended to charge him witb larceny in uttering said words.” Tbe plaintiff also excepted because tbe court charged tbe jury, “Tbe words, to be slanderous, must have been spoken witb tbe intent to charge tbe crime of larceny, and tbe words used under tbe circumstances must be so understood by tbe bearers.” Tbe judge used tbe same instructions, 'that there must, be an intent on tbe part of tbe defendant to charge tbe plaintiff witb larceny, in instructing tbe jury on tbe second and third issues. This presents substantially tbe controversy submitted on appeal. Tbe proof was not that tbe defendant bad used tbe word “stole,” but that be said to Cochrane that bis brother bad [181] “ketehed McCall taking some pokes of cotton ont of bis cotton patch tbe night before.” As to the second issue, Ferguson testified that he “told defendant that' he didn’t doubt that Thomas had lost the cotton, but didn’t believe that Dave McCall got it, to which defendant replied, 'I do,’ and that defendant further said: £I believe Dave McCall got it, for Thomas said he had seen him get it.’ ” As to the third issue, Simpson testified that the “defendant told McCall that he had come down to make up with him,” and said, “Now, we have come up here to make up this trouble between you and Thomas about taking Thomas’s cotton,” to which McCall replied, “I never took any cotton from Thomas or any one else.” The defendant replied, .“Thomas saw you take it, and you know you got it; Thomas says you got it,” and McCall replied that he didn’t get it and was very sorry they accused him of getting it and he had not taken cotton from any one. If the evidence had been that the words used were unequivocal that the plaintiff “had stolen the cotton,” then the judge would have been justified in charging the jury that if they believed the evidence they should answer the issue “Yes.” But here the words proven were that the plaintiff had 'Taken the cotton.” The judge therefore properly charged the jury that the burden was upon the plaintiff to find whether the words in view of the circumstances under which they were used naturally imported that the persons spoken of had committed the crime of larceny, and that the words were used with the intent to charge the plaintiff with larceny in uttering said words. The words were not an express charge of larceny, because a “taking” of cotton is not necessarily larceny. "Whether the use of that word was intended to convey, under the surrounding circumstances, a charge that the defendant had “stolen” the cotton, was a matter which was properly left to the jury. In Lucas v. Nichols, 52 N. C., 36, the Court said: “The words used being ambiguous and capable of a double construction, it was proper for the judge to leave it to a jury to decide under the circumstances whether it was intended thereby to charge the plaintiff with a crime.” The plaintiff contends here that this well-settled principle is [182] not in point, because only one opinion could be drawn as to the meaning of the language used. But we do not think so, and neither did the jury to whom the matter was submitted. They have found as a matter of fact that the defendant did not intend to charge the plaintiff on either occasion with larceny. We cannot know how far the jury may have been influenced by the fact that if the defendant intended to charge the plaintiff with larceny his conduct in attempting to make up the matter with him would have been the compounding of a felony, and therefore that it was unlikely that he had charged the plaintiff with the felonious taking of the cotton. No witness testified that the word “steal” was used at any time, but in all the conversations the word used was “take” or “got,” which does not necessarily imply a “felonious taking”; and as to the surrounding circumstances, there is the fact that there was an attempt by the defendant and his brother to settle the matter by getting the plaintiff to pay for the cotton. There is also the testimony of the defendant that he did not mean to charge the plaintiff with stealing the cotton and did not think that the plaintiff had stolen it, and had never told any one that he thought the plaintiff had stolen the cotton. In Hampton v. Wilson, 15 N. C., 470, Ruffin, G. J., said that unless the words used could bear only one construction “it was for the jury to pass upon the intent, to be collected from the mode, extent, and circumstances of the publication.” To same effect is Studdard v. Linville, 10 N. C., 474, where the Court laid down the rule, “Words to be slanderous must be spoken with an intent to slander and must be so understood by the hearer.” That case has been approved in McBrayer v. Hill, 26 N. C., 139; Pugh v. Neal, 49 N. C., 369. The words “took” or “got” being susceptible of more than one construction, the court properly left the question of the intent and meaning of the language to the jury to say whether the hearers would reasonably have construed them as charging larceny of the cotton. “Where in an action for slander the words are ambiguous, but admit of slanderous interpretation, it should be left for the jury to say under all the circumstances what meaning was intended.” Reeves v. Bowden, 97 N. C., [183] 32; Lucas v. Nichols, 52 N. C., 32. The intent with which the words were used was left to the jury in S. v. Benton, 117 N. C., 788; Webster v. Sharpe, 116 N. C., 470, and Hudnell v. Lumber Co., 133 N. C., 169. In Wozelka v. Hettrick, 93 N. C., 13, relied on by the plaintiff, the defendant admitted that he spoke the words charged, which were slanderous per se, and the Court held that an honest belief in the truth of the charge was not a defense and could be considered by the jury only in mitigation of damages. In the recent case of Fields v. Bynum, 156 N. C., 413, it was not contended that the words spoken were of doubtful import, as in this case, but they plainly and unequivocally charged the plaintiff Fields in the nighttime had burned, not one, but two, sawmills of the defendant. The language there used is set out in the opinion by Mr. Justice Brown and is too plain to admit of any doubt as to its meaning. It was not even contended that the words were not actionable per se. The defense was that the occasion upon which they were spoken was privileged. The difference between that case and this is plainly manifested in the statement of facts. No error.