Riley v. Stone

174 N.C. 588

Opinion

Walker, J.,

after stating the case: Those facts, which are apparently undisputed in this case, do not impress us very favorably for the plaintiff, but we must remember that she is entitled to have a jury pass upon them, and we are bound by the verdict, if no error in law has been committed at the trial. The verdicts of jurors may not always be right, but no better system has ever been devised for the purpose of deciding the facts than that which we have «adopted for so many years. If the jury err, the remedy is with the trial judge, who can set aside the verdict if against the weight of the testimony. . Unless this is done, we must accept it, at least, as a correct finding of the facts. The judge refused, in this case, to disturb the verdict, but, on motion of the defendant, he entered a judgment of nonsuit as to the third cause of action relating to the alleged assault, leaving two causes of action — one for slander and the other for false imprisonment. We are not called upon to inquire, and decide, as to the strength of the proof, or the weight of the evidence, for they are matters for the consideration of the jury alone, under the corrective supervision of the judge to avoid a miscarriage of justice. We are aware of the difficulty often presented in marking clearly the exact line of division between some and no evidence, but we have no such trouble in this case. The jury having adopted the plaintiff’s version of the facts, as against the one advanced by the defendant, the only question is whether we can find in the record aivy evidence which, if construed most favorably for the plaintiff, will support the finding of the jury.

What was said by the defendant, and imputed to him as slander, was privileged, not absolute, but qualified (Billings v. Fairbanks, 139 Mass., 66), and the defendant is protected by this privilege, provided he used it without malice. Bacon v. M. C. Railroad Co., 66 Mich., 166. The words uttered were slanderous, and actionable per se, unless they were true or privileged, and if false, and not privileged, the liability of defendant attaches for having spoken them. Hamilton v. Nance, 159 N. C., 56.

The doctrine of privilege has been often considered by the courts, and has been defined with reasonable clearness. It is a duty which every one owes to society and to the State in which he lives to assist in the investigation of any alleged misconduct and to promote the detection of crime. All information given in good faith in response to any inquiries made with this object is clearly privileged. But this duty does not arise merely when confidential inquiries are made. If facts come under any person’s knowledge which lead him reasonably to conclude that a crime has been or is about to be committed, it is his duty at once to give information to the public authorities or to the persons interested, and, therefore, upon grounds of public policy communications which would otherwise be slanderous are protected as privileged if they are made in good faith in the prosecution of an inquiry regarding a crime which has been committed and for the purpose of detecting and bringing to punishment the criminal. All material statements made by the persons interested in the detection of the crime during their investigations and relevant thereto, are privileged. For the sake of public justice, charges and communications which would otherwise be slanderous are protected if made in good faith in the prosecution of an inquiry into a suspected crime. Newell on Slander (3d Ed.), secs. 595 and 597. In those eases where one person has an interest in the subject-matter of the communication, and the person to whom the communication is made has a corresponding interest, every communication honestly made in order to protect such common interest is privileged by reason of the occasion. Newell on Slander, sec. 623. This Court stated the rule in Harrison v. Garrett, 132 N. C., 176: “Any communication between employer and employee is protected by this privilege, provided it is made bona fide about something in which (1) the speaker or writer has an interest or duty, (2) the hearer, or persons addressed, has a corresponding interest or duty, and provided (3) the statement is made in protection of that interest, or in the performance of that duty. There must also be an honest belief in the truth of the statement. When these facts are found to exist, the communication is protected by the law, unless the plaintiff can show malice on the defendant’s part, the burden in this respect being on the plaintiff.” The utterance of words actionable per se implies malice, and in the absence of a plea of justification, or when the plea is set up and the issue is answered against the defendant, the law says that the words are false, and the plaintiff is entitled to recover his damages. Hamilton v. Nance, supra; Ramsey v. Cheek, 109 N. C., 274. But where there is. qualified privilege, the plaintiff must go further and show that the defendant was governed by a bad motive, and that he did not act in good faith, but took advantage of the occasion to injure the plaintiff in her character or standing. This privilege applies where the publisher of the alleged slander acted in good faith in the discharge of a public duty, legal or moral, or in the prosecution of his own rights ’or interests; to anything said or written by a master concerning the character of a servant who has been in his employment; to words used in the course of' legal or judicial proceedings; and to publications duly made in the ordinary mode of parliamentary proceedings. White v. Nichols, 3 How. (U. S.), 266. Ours is a case of qualified privilege which has the effect of rebutting the implied malice, upon the presumption that the words were honestly spoken in protection of the speaker’s interests, and places the burden upon the plaintiff to show express malice, as we have shown, and whether he has exceeded his privilege, or abused it, by acting with a bad motive, are ordinarily questions for the jury. Gattis v. Kilgo, 140 N. C., 106. Whether the defendant used the words maliciously or with a bad motive must be determined by the jury from all the facts and circumstances, if there is any evidence of the same. While the evidence to-support the accusations of dishonesty made against the plaintiff is apparently very strong, we are of the opinion that there is some evidence that the defendant did not act with the best motive, but from a bad motive of spite or malice against the plaintiff. We are not required to say how we would have found as to the fact- of plaintiff’s guilt or the defendant’s motive, but are confined to the simple question, whether there was any evidence as to the latter, however weak it may be, so that it is enough to-be considered by the jury. The manner in which the defendant addressed the plaintiff in his office was rude, unnecessary, and uncalled for. Whether she was guilty of shoplifting, or not, she had the right to fail" and considerate treatment from one who professed to be acting under a privilege of the law in the honest protection of his interests. There were-two men in the room with this woman, who had no one to Befriend her or to see that she received fair treatment. Defendant accused her roughly of taking goóds without number, and told her there was no use in trying to explain, and asked her “to square herself around here at this desk, and write down for me on paper a few of the things that you have taken. I don’t hope for you to remember all of them. It would be impossible.” She said, in reply: “Mr. Stone, if you think now that you are going to-get me to square myself and write down on paper for you things that I have not got, I am not going to do it. You nor a regiment like you could not make me do that.” Then he got mad and said: “Well, I did not know you would get bigoty and uppish about it, but thought you would be willing to confess tbe matter. Don’t yon know wbat this means to yon if yon don’t do it ? Don’t yon know I will bave to call an officer and bave yonr room searched, and tbat will be embarrassing to you and to tbe people witb whom you are living, and you will bave to go up and stay in jail all nigbt, and in the morning it will come out in big headlines in tbe paper, and yonr people in Sanford will bear of it, and yon will be branded as a thief tbe rest of your life?” And plaintiff said: “Mr. Stone, I bave done all I can to explain.” Lie got up and called J obn Stone, and said: “ J obn, call an officer. Miss Eiley don’t think we are giving her a square deal.” Plaintiff testified: “I stayed there a few minutes, and an officer came in. I later learned it was Mr. McCniston. Mr. Stone said: ‘We bave a girl here who has been stealing goods away from tbe store, and I want to bave her room searched.’ ” Tbe treatment of tbe plaintiff in her room, when search for the goods alleged to bave been stolen was being made, exceeded any privilege of tbe law under which defendant claims protection, and was evidence of an ulterior motive in charging her witb tbe larceny. His slurring remarks about her extravagance, and tbe much more serious imputation or insinuation against her chastity — for tbe jury might infer tbat this was bis meaning — were not, to say tbe least, germane to tbe object of tbe search. His general conduct and demeanor throughout tbe transaction in tbe store and in her room were indicative of a feeling of resentment against her.

There are other circumstances of equal importance in deciding whether there was any evidence of malice or a wrong motive, but we will refer to only one part of the testimony in this connection. Elmer Shields testified : “I saw Mr. Stone Monday morning. He called me up to bis office and said be understood I didn’t think be bad treated Miss Eiley right. I told him no, I didn’t think be bad given her a square deal. He said he didn’t think be had — be ought to bave turned her over to tbe officer and bad her locked up.” This is not the language of a man who is acting within tbe bounds of bis privilege. Finally, tbe plaintiff brought this suit, and almost immediately following this act on her part tbe defendant caused a warrant for larceny to be issued against her. It is strange tbat he did not prosecute her upon tbe evidence be bad collected before be detained her in tbe store. If he had done so, and she bad sued him for malicious prosecution, tbe alleged evidence upon which be based his accusations against her when in tbe store, if true, would bave exonerated him, as it would bave constituted probable cause. Tbe jury bad tbe right to consider tbe issuing of tbe warrant as a retaliatory measure, and it is evidence of tbe state of bis feelings toward tbe plaintiff. Tbe charge against tbe plaintiff tbat she bad pilfered tbe store was justified only so far as it was made in good faith and was required for tbe protection of tbe defendant and tbe public, and for tbe purpose of bringing tbe plain tiff before the bar of justice to answer for the crime, and tbe questions whether the defendant has acted in good faith, or has not exceeded his privilege, are for the jury. Gassett v. Gilbert, 72 Mass. (6 Gray), 94. The privilege imports that the words are uttered in a legal proceeding, or on some other occasion of apparent duty which prima facie imports that the party was actuated by a sense of duty, and not by the malice which is generally to be implied from speaking words imputing a crime to another. There can be no doubt that the accusation had a direct tendency to hold the plaintiff up to public reproach and disgrace, and was therefore actionable, unless it falls within the class of communications or statements usually termed privileged — that is, authorized by law— notwithstanding they may injuriously affect private character. The law regards the publication of all defamatory matter which is false in fact as malicious, and affords to the party injured a remedy in damages therefor. This is the general rule. But there are cases which constitute an exception to it. These are, when the cause or occasion of the publication is such as to render it proper and necessary for common convenience and the general welfare of society that the party making it should be protected from liability. In such cases the occasion rebuts the inference of malice, which the law would otherwise draw from an unauthorized publication, and renders it necessary for the party injured to show malice, or, as it is sometimes called, malice in fact, as an essential element in support of his action. “A publication 'fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned/ comes within the class of privileged or authorized communications. A party cannot be held responsible for a statement or publication tending to disparage private character, if it is called for by the ordinary exigencies of social duty, or is necessary and proper to enable him to protect his own interest or that of another, provided it is made in good faith and without a willful design to defame. This general statement of the doctrine on this point seems 'to be consonant with sound principle, and is supported by numerous authorities.” Gassett v. Gilbert, supra, and cases therein cited. We have not considered the fact that the charges were found by the jury to be false, as evidence sufficient to show express or actual malice, but have followed in that respect the rule laid down by this Court in Ramsey v. Cheek, 109 N. C., 274. Nor have we laid much stress on what John Stone did as floor manager of the store, because not urged in argument, and as we are convinced that there is evidence of ratification of his acts, and approval of his acts is equivalent to prior authority to do them. Horton v. Hensley, 23 N. C., 163; Daniel v. R. R., 136 N. C., 517; Cooley on Torts, pp. 127, .214. As this is a motion to nonsuit, and the charge of the court is not before us, we must assume, in the absence of it, tbat tbe court gave proper instructions upon tbe evidence, as error is not to be presumed. In re Smith's Will, 163 N. C., 464. Tbe liability of tbe master for tbe tort of bis servant is discussed in Daniel v. R. R., supra; Jackson v. Telegraph Co., 139 N. C., 347; Flemming v. Cotton Mills, 161 N. C., 436; Garretson v. Duenkel, 50 Mo., 104; Wood on Master and Servant, secs. 288, 294.

Tbe contention that there was no evidence of a false imprisonment cannot be sustained. This term has been variously defined, as will appear by tbe following references to it, taken from tbe text-books: “False imprisonment is the unlawful and total restraint of tbe liberty of tbe person. Tbe imprisonment is false in tbe sense of being unlawful. . . . Tbe right violated by this tort is ‘freedom of locomotion.’ It belongs, historically, to tbe class of rights known as simple or primary rights (inaccurately called absolute rights), as distinguished from secondary rights, or rights not to be harmed. It is a right in rem; it is available against tbe community at large. Tbe theory of tbe law is, tbat one interferes with tbe freedom of locomotion of another at bis peril. . . . Unlawful detention by actual physical force is unquestionably sufficient to make out a cause of action. Unnecessary violence in an otherwise justifiable arrest may give rise to it. Actual physical contact with tbe person of plaintiff is not, however, essential. Battery often accompanies arrest, but this is incidental only. Force is essential only in tbe sense of imposing restraint. . . . Tbe essence of personal coercion is tbe effect on tbe alleged wrongful conduct pn tbe will of plaintiff. There is no legal wrong unless tbe detention was involuntary. False imprisonment may be committed by words alone, or by acts alone, or by both; it is not necessary tbat tbe individual be actually confined or assaulted, or even tbat be should be touched.” 19 Oye., pp. 319 and 323. “Any exercise of force, or express or implied threat of force, by which in fact tbe other person is deprived of bis liberty, compelled to remain- where be does not wish to remain, or to go where be does not wish to go, is an imprisonment. . . . Tbe essential thing is tbe restraint of tbe person. This may be caused by threats, as well as by actual force, and tbe threats may be by conduct or by words. If tbe words or conduct are such as to induce a reasonable apprehension of force, and tbe means of coercion are at band, a person may be as effectually restrained and deprived of liberty as by prison bars. . . . Tbe true test seems to be, not tbe extent of tbe restraint (where the interference amounts to a restraint), but tbe lawfulness thereof.” 11 Ruling Case Law, pp. 793 and 794. “It is not necessary to constitute false imprisonment tbat tbe person restrained of bis liberty should be touched or actually arrested. If be is ordered to do, or not to do, tbe thing; to move, or not to move, against bis own free will, if it is not left to bis option to go or stay where be pleases, and force is offered, or there is reasonable ground to apprehend that coercive measures will be used if he does not yield, the offense is complete upon his submission. A false imprisonment may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual, or by personal violence, or both. It is not necessary that the individual be confined within a prison or within walls, or that he be assaulted. It may be committed by threats.” Martin v. Houck, 141 N. C., 317; Voorhees on Arrest, secs. 274, 275, 276. The language here was: “I said, ‘I am sick; my back is hurting me so bad I don’t know what to do. "Well, it is 7 o’clock most; suppose I go to supper? John had already told me that his father would be in on the 7 :!0 train, and that he would see me; so I asked him to let me go.to supper.’ No, you cannot go to supper; you will have to stay here until the “boss” comes.’ ” This language would indicate that when plaintiff was told that she could not go to supper, but must stay there, after she had stated that her back was hurting her, that there was actual restraint upon her “freedom of locomotion.” She wanted to leave, for two reasons — because she was suffering with her back, and because it was her hour for supper. Notwithstanding these two good reasons for leaving the room, she did not quit the place after being told that she could not go, but must stay where she was at the time. When ordered to remain where she was, she submitted to the command, though she had two good reasons for leaving and wanted to go, and no doubt she would have gone had she thought herself free and untrammeled to do so. It is quite certain that she would have done so. Her language is: “I was told that I could not go, but that I would have to stay; so I stayed.” This language means that her reason for staying was the order from John Stone. The word “so” is defined as “the case being such,” “therefore,” or “for this reason,” and was used by her in that sense, as if she had said “Ho told me I could not go, but' must stay, and for this reason I stayed.” She gives as her reason for not going, that he virtually ordered her not to leave, which implies clearly that she was coerced by what had been said to her, and thought that her freedom to act as she desired had been restrained or taken away. But the conduct of the defendant, after he entered the room, with his threats and intimations, and circumstances attending his inquiries as to the thefts, the order for a policeman with a warrant to search her room, after she had said, “I don’t want my room searched if there is any. other way,” what he said to her in her room, and what the policeman said in his presence and hearing, all tended to show intentional and actual restraint of her person. “Get yourself ready,” said McOuiston to her; “you will have to go up to the police headquarters with me tonight. I will promise not to put you in jail; that is what I ought to do, but I will promise not to do that. It is a mighty bad night, and you can stay in the police office. There is a chair there, and a conch, and you can be fairly comfortable.” In reply to which, the plaintiff testified: “I said, Ts it as bad as that ? Isn’t there any way in the world I could arrange to stay in my room?’ lie said, ‘You can give bond and stay in your room.’ Of course, I knew nothing about such things. I said, ‘I think, if you will give me time to get some of my friends, I could do that.’ ” The action of the parties seems to have impressed 'her with the belief that she was under compulsion to stay where she was until it suited their pleasure to release her. The proper thing to have done was to have secured a warrant of arrest in the beginning, if the defendant thought .that his evidence, already accumulated, was sufficient to show guilt on her part. The case would then have been tried on its own merits, and involved simply the question of her guilt, or rather of probable cause for the accusation, unmixed with malice or other elements calculated to prejudice the defendant in any controversy with her. They ordered her to appear at the police court Monday morning, which she did not do, but they took no further steps to prosecute her — why, does not appear, unless defendant’s confidence in his case had abated.

Our conclusion is, that there was evidence of malice, or wrong motive, under the count for slander, and of false imprisonment, under the other count. The plaintiff may be guilty, notwithstanding the verdict, but we must accept the latter as conclusive on the truth of the matter.

No error.