#### ZOE BARRINGER and Husband v. E. M. DEAL.

(Filed 3 December, 1913.)

1. Slander — Ulterior Purpose — Trial—Evidence.

While in an action for slander it is competent for the defendant to testify that the slanderous words were uttered by him without malice, it is incompetent for him' to testify as to the purpose with which he did so, uncommunicated at the time.

*2472. Slander — Compensatory Damages — Evidence.

Compensatory damages may be recovered in an action for slander without specific proof that they have been suffered, when the words are libelous per se, their falsity is admitted, justification not pleaded, and privilege not claimed.

3. Trial — Instructions, When Submitted — Appeal and Error.

The refusal of the trial judge to give special instructions requested is not reviewable on appeal when it appears that they were submitted to the judge after the close of the evidence. Rev., secs. 536, 538.

Appeal by defendant from Cline, J., at July Term, 1913, of Catawba.

W. A. Self, George McCorlcle, R. R. Moose.

Councill & Yount for defendant.

Clark, C. J.

Tbis action is -to recover damages for tbe slander of tbe feme plaintiff. Tbe charge, if not true, was a cruel and malicious slander. Tbe defendant in bis answer does not plead justification, but admits tbat at tbe time of making tbe libelous statement be did not know tbat it was true, and in bis evidence admits tbat it was not true. He does not plead privilege, and it was not an occasion for privilege.

Tbe first exception is because tbe judge excluded tbe following question: “You admit in your answer using tbe language charged for a purpose. ' Tell what your purpose was.” Tbis question was properly excluded. Tbe language on its face was grossly libelous per se. It was not competent for tbe defendant to testify as to bis purpose, which was only a mental conclusion, unless be bad stated bis purpose at tbe time of making tbe libelous utterance. Not having done so, it could not lessen tbe damage and wrong done tbe plaintiff tbat tbe defendant may have bad a concealed ulterior motive. In Fields v. Bynum, 156 N. C., 413, tbe Court said: “Tbe defendant must show something more than honest belief in tbe truth of bis utterances, for be must show tbat tbe communication was made in good faith on an occasion which justified bis making it.” "None of these things were shown.

*248It was competent to ask tbe witness whether he had any malice toward the plaintiff. This was done, and the defendant testified that he did not have any malice. Bnt it is not open to him to testify that he had a motive which he did not make known at the time of his utterance. The rule is thus stated in Eolkard’s Starkie on Slander, 398, note 2: “A defendant in an action for slander has a right to explain the meaning of the words used by him and rebut the presumption of malice if his explanation is by reference to matters occurring when the words were spoken, so that those hearing them ought to have understood them as explained.” But this does not permit the defendant to testify that he had a hidden, uncommunicated motive, when at the time of using the words it was not made known to those who heard him make the slanderous statement.

The exception that the court permitted the plaintiff to recover compensatory damages without- proof of having actually suffered any, cannot be sustained. In Hamilton v. Nance, 159 N. C., 56, it is held: “In an action for slander, where justification is not pleaded and privilege is not claimed, the jury, upon finding an affirmative answer to the first issue, implies as a matter of law that the charge complained of is false and malicious, and compensatory damages should be awarded; and additional punitive damages may also be given if the jury find actual malice.” To same effect, Fields v. Bynum, 156 N. C., 414, where the Court says: “When general damages are sought in an action of slander for words spoken which are actionable per se, compensatory damages may be awarded which embrace compensation for those injuries which the law will presume must naturally proximately and necessarily result, including injury to the -feeling and mental suffering endured in consequence; and it is not incumbent on the plaintiff to introduce evidence that he has suffered special damage in such instance.” This was excepted to, but is a verbatim quotation from that opinion.

The defendant -requested certain prayers which the court declined to give, for the reason that they were “handed up after the conclusion of the charge.” Revisal, 536, 538, require such *249prayers to be banded up at or before tbe close of tbe evidence, and it was not error for tbe judge to refuse to consider them. Craddock v. Barnes, 142 N. C., 89; Biggs v. Gurganus, 152 N. C., 173.

We cannot pass over without notice that tbe assignment of errors are insufficiently made, in that they merely refer tó tbe exceptions, without giving tbe substance of tbe matters excepted to. Thompson v. R. R., 147 N. C., 412; Smith v. Manufacturing Co., 151 N. C., 260; Keller v. Fiber Co., 157 N. C., 576.

•No error.