#### J. L. BAKER v. J. D. WINSLOW.

(Filed 13 September, 1922.)

1. Appeal and Error — Objections and Exceptions — Briefs—Rules of Court.

Only tbe exceptions mentioned and discussed in tbe appellant’s brief are considered in tbe Supreme Court on appeal.

2. Slander — Damages—Mental Suffering.

In an action for slander, general damages, when recoverable, include actual or compensatory damages, embracing compensation for those injuries wbicb tbe law will presume must naturally and proximately result from tbe utterance of words wbicb are actionable per se, and may include injury to tbe feelings and mental suffering endured in consequence.

S. Same — Actionable Per Se — Pleadings—Proof..

Where tbe words spoken and published in an action for slander are actionable per se, general damages need not be pleaded or proved.

4. Slander — Evidence—Punitive Damages.

In an action for slander, words falsely charging tbe plaintiff, tbe defendant’s tenant or cropper, with stealing a part of tbe defendant’s crop raised by tbe plaintiff upon bis lands, are actionable per se, when the words are spoken in tbe presence of otheis.

5. Slander — Malice—Damages—Compensatory Damages — Justification.

Where tbe words spoken by tbe defendant of and concerning tbe plaintiff in an action for slander are. actionable per se, tbe law will imply malice on tbe part of tbe defendant, wbicb entitles the plaintiff to compensatory or actual damages; this kind of malice does not necessarily mean personal ill-will, but a wrongful act knowingly and intentionally done tbe plaintiff without just cause or excuse.

*26. Same — Punitive Damages.

Where the words uttered of and concerning the plaintiff in an action for slander are actionable per se, the finding of malice upon the issue does not alone establish the right of the jury to award punitive damages, unless there is actual malice, in the sense of xiersonal ill-will, or there are features of aggravation, as when the wrong is done the plaintiff wantonly or under circumstances of rudeness or oppression, or in a manner which evidences a reckless and wanton disregard of the plaintiff’s rights.

7. Appeal and Error — Instructions—Slander—Actual Damages — Punitive Damages.

A charge of the court in an action for slander is not objectionable in failing to repeat the distinction between implied malice, for which punitive damages may not be awarded, and actual malice, in the sense of personal ill-will, etc., upon which the jury may award punitive damages in their ■ discretion, when it appears, upon considering the entire charge, that the judge has once, at least, clearly distinguished the implied malice that would alone entitle the plaintiff to actual or compensatory damages, from actual or express malice, or personal ill-will, which would permit the addition of punitive damages, under the evidence in the case.

8. Same — Harmless Error — Requests for Instruction — Burden of Proof.

Where three issues in an action for slander have been submitted to the jury upon the pleadings and evidence, as to whether the defendant spoke the words defamátory of the xfiaintiff’s character; as to their falsity and the amount of the damages, exception of defendant that the court failed to put the burden of proof of the third issue upon the xfiaintiff, is untenable, where it clearly appears from the charge that the burden of the first two issues was expressly placed upon the plaintiff, and that of the third by clear implication, so that the jury, acting with intelligence, must have so understood it, it being for the defendant to ask for more explicit instructions, should he have so desired.

9. Verdict — Impeachment—Jurors—Clerks of Court — Evidence—Hearsay ■ Evidence.

Jurors may not impeach, by direct testimony, their verdict after it has been rendered; nor - may this be done indirectly upon testimony of the clerk, or another, of a conversation he had overheard between some of the-jurors, after the verdict was rendered, the latter being further objectionable as hearsay; and where the trial judge has found the facts to be as set out in the clerk’s affidavit, and overrules the motion as a matter of law, it is, in effect, a conclusion that evidence of this character was not admissible for the purpose, and would not, therefore, be considered by him.

10. Slander — Damages—Punitive Damages — Evidence—Worth of Defendant.

Where the matter published, in an action for slander, is actionable per se, and the verdict has been found against the defendant on the issue as to justification, upon further evidence tending to show actual malice, personal ill-will, or such aggravation of circumstances permitting the recovery of punitive damages, evidence concerning the defendant’s worth or financial standing upon this element of damages is competent. The proper issues in actions for slander with or without the plea of justification, and the verdicts thereon, discussed by Walker, J.

*3Appeal by defendant from Allen, J., at January Term, 1922, of Pasquotanic.

Tbis is an action of slander.

Plaintiff alleged in bis complaint tbat be resides in Pasquotank County, and bas lived there since be was twelve years of'age, be now being fifty-two years old, and tbat be bas always borne a good character and reputation among bis neighbors and in the community where be made bis home, and that be deserved the same.

That the defendant resides in Elizabeth City, North Carolina, and bas for a number of years.

Tbat in December of the year 1920 the defendant came to the home of the plaintiff and, in the presence of John Baker and divers other persons, spoke of and concerning the plaintiff in the following language : “You are stealing my corn and carrying it away”; and defendant asked the plaintiff didn’t be (plaintiff) promise not to move any of the crops before be bad settled up with him (defendant), and plaintiff replied: “I have not removed an ear of corn, Mr. Winslow.” Defendant replied: “You are the lyingest and most vicious old devil I ever met up with— you have been stealing my rent corn all the year and attending your crop on it, and lying about it. You are a damn old lying, thievish rascal.” The plaintiff ordered the defendant to go into the road, and be left and went into the road, and then returned and said, “I bate to say so, but you are a damned old lying son of a bitch.”

Tbat the defendant intended to charge, and did charge, tbis plaintiff as being a thief, and guilty of the high crime of larceny.

Tbat the defendant intended to charge, and did charge, the plaintiff with the crime of larceny, to humiliate and defame and ruin bis good name and .character among bis fellow-men.

Tbat the charges made by the defendant were false and malicious, and were made for the purpose of humiliating and degrading the plaintiff, and to ruin bis good name and fame in the community in which be lives.

Tbat by reason of the defendant’s malicious, slanderous, and false charges made against tbis plaintiff, be bas been greatly damaged.

Plaintiff further alleges tbat be bas suffered damages in a large sum for which be prays judgment.

The charge relating to stealing the crops grew out of the relations between the parties, the defendant being the landlord, or principal, and the plaintiff bis tenant, or cropper, the charge being tbat plaintiff bad stplen a part of the crop which belonged to the defendant.

Defendant answered and denied the alleged slander. He admitted tbat the plaintiff now resides in Pasquotank County, North Carolina; tbat the defendant bad not sufficient knowledge or information to form *4a .belief of tbe other allegations set out in the complaint, as to the plaintiffs former character and reputation, and therefore denies the same.

Defendant then answers further that, again insisting that he had made no such charges against the plaintiff as outlined and set forth in the complaint, this defendant insists that each and every utterance he has made of and concerning the plaintiff at any time has been only of such character as is consistent with the truth, and was true in every particular.

That plaintiff, while a tenant of defendant, without paying his rent and advancements, and without notifying defendant, and against defendant’s express orders, and in violation of his agreement, had removed, or caused or permitted to be removed, a part of the crops. All of which this defendant pleads in mitigation, and pleads, as well, the truth of any utterances made by him in justification and bar of plaintiff’s right of recovery.

There was evidence tending to support the allegations and denials of the respective parties. The jury returned the following verdict:

“1. Did defendant,. in substance, speak of the plaintiff the language alleged in the complaint? Answer: 'Yes.’

“2. If so, was same false? Answer: 'Yes.’

“3. What damages, if any, is plaintiff entitled to recover? Answer: '$1,925.’ ”

Judgment was entered upon the verdict, and the defendant appealed, after assigning errors.

Aydlett & Simpson for plaintiff.

Ehringhaus & Small for defendant.

Waleer, J.,

after stating the case: We will consider only the exceptions mentioned and discussed in the appellant’s brief, the others being abandoned either expressly or by the terms of our rule. Rule 34 (174 N. C., 837); S. v. Coble, 177 N. C., 588; S. v. Henderson, 180 N. C., 735.

The defendant’s first exception, as stated in the record and his brief, was taken to that part of the charge of the court as to the damages, the particular ground of the objection being that the court, in its instructions, permitted the jury to include in the damages, those of the plaintiffs mental anguish or suffering. The charge is clearly sustained by the authorities. In Fields v. Bynum, 156 N. C., 413, it being an action for slander, we held that general damages include actual or compensatory damages, and embrace compensation for those injuries which the law will presume must naturally, proximately, and necessarily result from the utterance of words which are actionable per se, such as the charge made in this case. Such damages include injury to the feelings *5and mental suffering endured in consequence. General damages need not be pleaded or proved. 18 A. & E., 1081, 1082, 1083, and cases cited in notes. That case was approved in Barringer v. Deal, 164 N. C., 246, which, also was an action for slander. In our case tbe verdict finds that the words, which in law are actionable per se, were uttered by the defendant, and that they were false. The law, therefore, implies malice, which entitles the plaintiff to actual or compensatory damages. Malice, in this connection, and within the scope of the issues, does not necessarily mean personal ill-will, but a wrongful act, knowingly and intentionally done the plaintiff without just cause or excuse, and the law implies this kind of malice in actions for slander when the words falsely spoken of and concerning the plaintiff are actionable per se. But punitive or exemplary damages also may be awarded, in the sound discretion of the jury, and within reasonable limits, but the right to punitive damages does not attach, however, as a conclusion of .law, because the jury have found the issue of malice in such action against the defendant. The right under certain circumstances to recover damages of this character is well established with us. But they are not to be allowed unless there is an element of fraud, malice, gross negligence, insult, or other cause of aggravation in the act which causes the injury. Holmes v. R. R., 94 N. C., 318. They are not to be included in the damages by the jury as a matter of course simply because.of the slander, but only when there are some features of aggravation, as when the wrong is done willfully, or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff’s rights. Ammons v. R. R., 140 N. C., 200 (majority opinion by Justice Holce); Stanford v. Grocery Co., 143 N. C., 419, 427. The rule as to compensatory damages is also stated there. As said by the Chief Justice in Osborn v. Leach, 135 N. C., 628: “Where the facts and nature of the action so warrant, actual damages include pecuniary loss, physical pain, and mental suffering.” And again: “Compensatory damages include all other damages than punitive, thus embracing not only special damages as direct pecuniary loss, but injury to feelings, mental anguish, etc.,” citing 18 A. & E., (2 ed.), 1082; Hale on Damages, pp. 99, 106. And, as directly pertinent to the charge upon this question to which exception was taken, we may conveniently and appropriately refer now to the Holmes case, supra, where it was held that if there' is rudeness or insult or “aggravating circumstances calculated to humiliate or disgrace the plaintiff, or party injured, punitive damages may be added to those which are merely actual or compensatory.” Rose v. R. R., 106 N. C., 170; Knowles v. R. R., 102 N. C., 66. Other cases to the same effect upon the questions of compensatory and vindictive or punitive damages in actions, and especially in slander, are Hamilton v. Nance, *6 159 N. C., 56; Cobb v. R. R., 175 N. C., 132; Hayes v. R. R., 141 N. C., 199; Smithwick v. Ward, 52 N. C., 64; Bowden v. Bailes, 101 N. C., 612; Cotton v. Fisheries Products Co., 181 N. C., 151. Tbe Court, by Justice Stacy, in tbe recent case of Cotton v. Fisheries Products Co., supra, said: “The defendants’ eighth and last exception relates to tbe charge on punitive damages. Tbe basis of tbis assignment is tbat there is no evidence from which tbe jury would be justified in awarding such damages, and tbat it was, therefore, error to instruct them upon tbe subject. "We think bis Honor properly submitted tbis phase of tbe case to tbe jury for their consideration. Not only did tbe language of defendant’s employees amount to a charge of larceny, actionable per se under our law, but tbe accompanying acts in causing plaintiff’s goods to be opened publicly and searched in tbe presence of divers persons gave such pronounced color and tone to tbe entire setting of tbe case as to warrant tbe jury in assessing exemplary damages. Punitive damages, sometimes called smart money, are allowed in cases where tbe injury is inflicted in a malicious, wanton, and reckless manner. Tbe defendants’ conduct must have been actually malicious or wanton, displaying a spirit of mischief towards plaintiff, or of reckless and criminal indifference to bis rights. WUen these elements are present, damages commensurate with tbe injury may be allowed by way of punishment to tbe defendants. But these damages are awarded on. tbe grounds of public policy, for example’s sake, and not because tbe plaintiff has a right to tbe money, but it goes to him merely because it is assessed in bis suit. In a proper case, like tbe one at bar, both tbe awarding of punitive damages and tbe amount to be allowed, if any, rest in tbe sound discretion of tbe jury,” referring to several of tbe cases we have cited above. So tbat it follows from tbe settled principles of tbe law we have shown to be applicable here tbat we cannot sustain tbe defendant’s first assignment of error. Tbe two cases cited by bis counsel in bis brief (Wilkie v. R. R., 128 N. C., 113, and Smith v. R. R., 126 N. C., 712), as to damages for mental suffering, do not support the exception and relate to a different principle than tbe one' involved here. Tbe learned judge correctly charged tbe jury as to compensatory damages, allowing them to include therein those for mental anguish.

Tbe next exception is equally untenable. Tbis exception, as stated by plaintiff’s counsel, was taken to tbat portion of tbe charge of tbe court which permits a recovery of punitive damages if tbe jury should find defendant, in uttering the words, “was actuated by malice.” The ground of objection to tbe charge being tbe failure of tbe court to distinguish between implied malice (for which punitive damages are not recoverable) and actual malice, upon which alone such damages may be predicated. For this he cites Stanford v. Grocery Co., 143 N. C., 428. But *7that case does not uphold bis contention, and is irrelevant to it. There the judge failed to distinguish between implied malice and actual malice, in the sense of personal ill-will, when charging the jury upon the question of punitive damages, but left the jury to infer that imputed malice, necessary only to fix responsibility, was sufficient to justify an award of punitive damages. The Court said in that case that the term “malice” as used here, in reference to the question of punitive damages, unlike its meaning in the issue fixing responsibility, means actual malice in the sense of personal ill-will, and the jury should be instructed that if they find the issue fixing responsibility in favor of the plaintiff, they shall award him compensatory damages, and if they further find that the wrongful act was done from actual malice in the sense of personal ill-will, or under circumstances of insult, rudeness, or oppression, or in a manner which showed a reckless and wanton disregard of the plaintiff’s rights, they may, in addition to compensatory, award punitive damages, citing Holmes v. R. R., supra; Ammons v. R. R., supra; Bowden v. Bailes, 101 N. C., 612; Kelly v. Traction Co., 132 N. C., 369; S. c., 133 N. C., 418; 1 Joyce on Damages, sec. 442, citing numerous authorities; 19 A. & E., 704. But the presiding judge (Hon. O. H. Allen) made no such mistake in this-case. He had clearly defined the kind of malice that would fix liability in law and entitle the plaintiff to actual or compensatory damages, and he did so substantially, at least, in accordance with correct principles. It is said in 25 Cyc., pp. 536, 537, 538: “In most jurisdictions, exemplary, punitive, or vindictive damages are recoverable in actions for defamation of character. In some jurisdictions, however, recovery is limited to actual or compensatory damages, and no punitive or exemplary damages are recoverable. In no case are such damages allowed as a matter of right, but their recovery rests in the sound discretion of the jury. If express malice on the part of defendant is shown, exemplary or punitive damages are proper. So, if the defamation was recklessly or carelessly published, punitive damages may properly be awarded as well as where the defamation was induced by the personal ill-will of defendant. On the other hand, there are many authorities to the effect that if express malice or recklessness equivalent thereto is not shown on the part of defendant, exemplary damages cannot be awarded. In some other jurisdictions it is held that where malice exists exemplary damages may be given, and that it is immaterial whether the malice is actual or implied in law.” But in this jurisdiction, where there is actual malice (as contra distinguished from imputed malice, or malice implied by the law from intentionally doing that which in its natural tendency is injurious), the jury may award punitive damages. This has long since been settled by numerous of our decisions. Gilreath v. Allen, 32 N. C., 67; Bowden v. Bailes, 101 N. C., 612; *8 Upchurch v. Robertson, 127 N. C., 127; Stanford v. Grocery Co., supra; 17 R. C. L., sec. 202. The following instruction of tbe court (Hoke, J., presiding), in Upchurch v. Robertson, supra, was approved by tbis Court, when it said: “The instruction was also correct when the court refused to charge the jury that there was no evidence of actual damage to the plaintiff, and therefore the jury could not award to the plaintiff vindictive damages. He properly instructed them that ‘the damages were very much in the discretion of the jury. If the first issue was answered “Yes,” they could award the plaintiff what in their judgment was a full compensation for injury; and, if satisfied by the greater weight of evidence that the charge was made by defendant from personal malice, with a design and purpose to injure the plaintiff, or if in the judgment of the jury the charge was made in such manner that it showed a reckless and wanton disregard for plaintiff’s rights, the jury might increase the amount awarded in compensation by exemplary or punitive damages.’ ” 127 N. C., at p. 129. In his charge to the jury in this case, the court, after explaining malice in law which entitles the plaintiff to actual or compensatory damages, referred to the question of punitive damages, and, while the judge did say to the jury that the plaintiff could recover only compensatory damages, and not punitive damages, “unless they find that the defendant was actuated by malice,” this meant more than malice in law, and manifestly referred to express or actual malice, or malice in fact. The judge had already defined very fully the term “implied malice,” as entitling the plaintiff to compensatory damages, and in further charging the jury, he could not have referred to anything but express malice, as being that which actuated, which means “incited” or “instigated,” defendant to commit the wrong. Besides, the judge afterwards made his meaning perfectly clear, when he said to the jury, if they found that the circumstances showed aggravation and malice, exemplary damages could also be awarded. "While, perhaps, the difference between the two kinds of malice could have been more sharply and distinctly drawn, it vas sufficiently done to prevent misunderstanding.

The next exception is taken to that supposed failure of the court to place the' burden of proof as to the third issue upon the plaintiff. Reading and interpreting the charge as a whole, it is clearly to be inferred that this was done, expressly as to the first two issues, and, by clear implication, as to the third. An intelligent jury could not have concluded, under the charge, that the burden was on the defendant to prove the damages, but that it rested upon the plaintiff himself. If the defendant desired more specific instructions, he should have asked for them. Simmons v. Davenport, 140 N. C., 407; S. v. Jones, 182 N. C., 785.

The next exception was taken to the refusal of the court to set aside the verdict because it was what is called a “quotient verdict.” The *9motion was based on tbe affidavit of the clerk of the court that E. L. Griffin and two other jurors said in his presence and hearing that each of the jurors stated in writing what he was willing to give, the several amounts being then added together and the result divided by twelve, and that the jury returned as their verdict the amount so found. The affidavit of the clerk, the record states, was admitted and considered by the court over the objection of the plaintiff. The judge declined to hear or consider the affidavits of jurors upon this question, and made this entry in the minutes of the court: “The court heard and considered the affidavit of the clerk, and found the facts to be true as therein stated, and that the verdict was arrived at in the manner described. Upon this finding of fact, the court declined, as a matter of law, to set aside the verdict. The court found as a fact that there was no influence brought upon the jury, or misconduct on the part of the jury in arriving at their verdict, other than as set out in the above findings.” The affidavit of the clerk as to what the jurors said was incompetent, and should not have been heard, or considered by the judge. If the jurors could not be heard to impeach their own verdict directly by affidavits, we are unable to understand how it could be done indirectly by affidavit as to what three of them had said in the hearing of the clerk. This is rank hearsay, and the court will not listen to what they thus say when, if they had been under oath, and their evidence subjected to the ordinary tests, they would not be heard. It is familiar learning that jurors cannot be heard to impeach their verdict. If that were allowed, law-suits would seldom be determined. Coxe v. Singleton, 139 N. C., 361-363. A juror cannot be heard to impeach the verdict returned into court after its record. The principle, succinctly stated in Bishop v. State, 9 Ga., 121 (4), that “the affidavit of a juror will not be received to impeach his verdict,” has been reiterated too often to permit of space for citations. Redfearn v. Thompson, 10 Ga. App., 550, at p. 558. There are many cases in this and other jurisdictions, decided with substantial uniformity, to the same effect.

The record states that the court declined, as a matter of law, to set aside the verdict. By this the judge meant that while he had found the affidavit of the clerk to be true, it was not competent for him to consider it, on the motion to set aside the verdict, because otherwise it would, in effect, allow jurors to impeach their own verdict, which they cannot do. As thus understood, the ruling was correct. Purcell v. R. R., 119 N. C., 732; McDonald v. Pless, 268 U. S., 264 (59 L. Ed., 1300). The judge should have refused to consider the affidavit at all, and he practically did so.

The last exception is to the admission of testimony concerning the wealth of the defendant. This was competent for the jury to consider on the question of punitive damages. 17 E. C. L., see. 201; Reeves v. *10 Winn, 97 N. C., 246 (2 Am. St. Rep., 287); Bowden v. Bailes, 101 N. C., 612; Tucker v. Winders, 130 N. C., 147; Cotton v. Fisheries Products Co., 181 N. C., 152; Harman v. Cundiff, 82 Va., 239; Danddll v. Evening News Asso., 97 Micb., 136; Holmes v. Holmes, 64 Ill., 294. “Whenever punitive damages may be awarded, evidence of the financial condition of the defendant is admissible in behalf of the plaintiff,” per Allen, J., in Arthur v. Henry, 157 N. C., 393, 404, citing Tucker v. Winders, supra.

We have held that the correct issues in actions to recover damages for slander, where the words alleged are actionable per se, and in which justification is not pleaded and privilege is not claimed, are:

1. Did the defendant speak of and concerning the plaintiff the words in substance alleged in the complaint ?

2. If so, what damage is the plaintiff entitled to recover ?

If the first issue is answered “No,” the case is at an end. If answered “Yes,” the law, in the absence of justification, says that the charge is false and malicious, and it is then the duty of the jury to award compensatory damages, and they may, in addition, award punitive damages if there is actual malice, which may be inferred by the jury in some eases from the circumstances. Stanford v. Grocery Co., 143 N. C., 419.

If justification is pleaded, the issues are:

1. Did the defendant speak of and concerning the plaintiff the words in substance, as alleged in the complaint ?

2. If so, were they true ? •

3. What damages, if any, is plaintiff entitled to recover?

If the first issue is answered “No,” or the second “Yes,” there can be no recovery; and if the first is answered “Yes” and the second “No,” the jury may award damages. This is true because the utterance of words actionable per se implies malice, and in the absence of a plea of justification, or when the plea is entered and the issue is answered against .the defendant, the law says the words are false. Hamilton v. Nance, 159 N. C., 59. This correctly summarizes the questions to be determined in such cases, where both compensatory and punitive damages are claimed. The jury in this case have found that there was no justification for the slander uttered by the defendant of and concerning the plaintiff, so^ that under our formula as to the issues, he was entitled to recover compensatory damages, and if he showed actual malice, he was also entitled to have the question of punitive damages submitted to the jury, and they may consider the wealth of the defendant upon the question of punitive damages. It was held in Harman v. Cundiff, supra: “If they find from the evidence that the defendant spoke of and about the plaintiff the defamatory words charged in the declaration, with actual malice *11towards tbe plaintiff, they may give exemplary damages, and in ascertaining tbe damages they shall consider tbe plaintiff's standing and that of tbe defendant, and tbe wealth of tbe defendant is only to be considered so far as it tends to show tbe defendant’s rank and influence in society, but not as showing bis ability to pay.”

Tbe case was hotly contested throughout, but those considered by us embrace all of tbe material exceptions upon which reliance appears to have been placed by the defendant, and we find that none of them is tenable, for the reasons we have stated.

The words of the defendant, used by him in the presence of others, which it was intended they should, and which they did hear, the jury said were not only not justified but false, and, besides being unjustifiable and false, they were uttered maliciously about the plaintiff before bystanders, and to humiliate and degrade him among his friends and neighbors there, and they no doubt had the intended effect. It is no wonder that the jury awarded the plaintiff a full verdict. He appears to have deserved it.

There is no error in the case, or record, and it will be so certified.

No error.