Bowden v. . Bailes

8 S.E. 342, 101 N.C. 612

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Smith, C. J.

(after stating the case.) We recapitulate the evidence of what transpired, which show's great forbearance on the part of the Judge in tolerating such conduct, and will only say that if the defendant suffered, it was in consequence of his own defiant manner and conduct, of w'hich he cannot complain.

The various exceptions to the charge may be grouped into a few propositions of law, the disposition of which will be an answer to all.

1. There is error in the instruction that in the absence of actual, by which we understand special damages, the plaintiff may recover such as are compensatory only.

2. Also in the instruction that if malice was proved in the utterance of the words, or the conduct of the defendant was marked by gross and wilful wrong or was oppressive, the jury may award exemplary damages. These we will now consider:

1. As under the siatute the charge of incontinency made against an innocent woman, in whatever words written or spoken, conveyed to the hearer, is per se actionable, their utterance must be followed by the same consequence as to damage as the publishing of other defamatory imputations, and this we take to be the meaning of the instruction as to actual, damages.

2. We discover no just grounds of complaint in what is said in regard to vindictive or punitory damages, when the circumstances stated accompany the defamatory imputations or they are prompted by malice.

In respect to a slander prompted by express malice for which punitory damages may be awarded, the law is well settled, and we are content to refer to a single case recently decide d—Sowers v. Sowers, 87 N. C., 303.

Nor do we see any reason why this may not be so when the slander is accompanied . with acts of oppression or a wilful wrong and indifference to its consequences to the injured party, for these but emphasize the malicious spirit which prompts them.

It is suggested in the argument that the slander should be wantonly as well as maliciously spoken, and the complaint should so aver.

Wé do not concur in this view. The statute in the operative part is explicit and positive that “ any words written or spoken of a woman which may amount to a charge of incon-tiriency shall be actionable.” (The Code, § 3763.) The language is unlike that used in section 1113, which makes “ an attempt in a w anton and malicious manner to destroy the reputation of an innocent woman by words written or spoken which amount to a charge of incontinency ” a misdemeanor.

So that to constitute the criminal attempt other averments •must be made to give it the character of an indictable offence, not required in a civil suit. State v. Claywell, 98 N. C., 731.

We find no error in the record, and the judgment must be .affirmed. Affirmed.