{ "id": 8654928, "name": "J. G. ELMORE v. THE ATLANTIC COAST LINE RAILROAD COMPANY", "name_abbreviation": "Elmore v. Atlantic Coast Line Railroad", "decision_date": "1925-05-13", "docket_number": "", "first_page": "658", "last_page": "674", "citations": [ { "type": "official", "cite": "189 N.C. 658" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "159 N. C., 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660154 ], "opinion_index": 0, "case_paths": [ "/nc/159/0541-01" ] }, { "cite": "127 N. C., 128", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "170 N. C., 492", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "159 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657958 ], "opinion_index": 0, "case_paths": [ "/nc/159/0241-01" ] }, { "cite": "169 N. C., 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658314 ], "opinion_index": 0, "case_paths": [ "/nc/169/0261-01" ] }, { "cite": "167 N. C., 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271852 ], "opinion_index": 0, "case_paths": [ "/nc/167/0174-01" ] }, { "cite": "87 N. C., 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690888 ], "opinion_index": 0, "case_paths": [ "/nc/87/0300-01" ] }, { "cite": "98 N. C., 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273579 ], "opinion_index": 0, "case_paths": [ "/nc/98/0131-01" ] }, { "cite": "135 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660525 ], "opinion_index": 0, "case_paths": [ "/nc/135/0628-01" ] }, { "cite": "178 N. C., 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272678 ], "opinion_index": 0, "case_paths": [ "/nc/178/0421-01" ] }, { "cite": "177 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653637 ], "opinion_index": 0, "case_paths": [ "/nc/177/0056-01" ] }, { "cite": "157 N. C., 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656840 ], "opinion_index": 0, "case_paths": [ "/nc/157/0179-01" ] }, { "cite": "49 N. C., 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682759 ], "opinion_index": 0, "case_paths": [ "/nc/49/0369-01" ] }, { "cite": "26 N. C., 139", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "10 N. C., 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277594 ], "opinion_index": 0, "case_paths": [ "/nc/10/0474-01" ] }, { "cite": "174 N. C., 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254986 ], "opinion_index": 0, "case_paths": [ "/nc/174/0588-01" ] }, { "cite": "109 N. C., 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650166 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/109/0270-01" ] }, { "cite": "140 N. C., 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651558 ], "opinion_index": 0, "case_paths": [ "/nc/140/0106-01" ] }, { "cite": "156 N. C., 416", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "64 Kan., 124", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1154826 ], "opinion_index": 0, "case_paths": [ "/kan/64/0124-01" ] }, { "cite": "16 N. Y., 548", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1297856 ], "opinion_index": 0, "case_paths": [ "/ny/16/0540-01" ] }, { "cite": "183 N. C., 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656084 ], "opinion_index": 0, "case_paths": [ "/nc/183/0309-01" ] } ], "analysis": { "cardinality": 1345, "char_count": 45250, "ocr_confidence": 0.438, "pagerank": { "raw": 3.2897117259233853e-07, "percentile": 0.8712498296232715 }, "sha256": "ddce852b5286c14bd4c988b09ca82433744f11dbb76683259bc8cc6ce7abb8cf", "simhash": "1:9fa5e4cbe2b9fc3e", "word_count": 7987 }, "last_updated": "2023-07-14T21:40:32.095485+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stacy, C. J., dissents; Vabseb, J., not having beard tbis case, did not take part in tbe decision." ], "parties": [ "J. G. ELMORE v. THE ATLANTIC COAST LINE RAILROAD COMPANY." ], "opinions": [ { "text": "Clarkson, J.\nIt will be noted tbat plaintiff alleges two causes of action of slander against tbe defendant:\n(1) Tbat defendant falsely and maliciously published of and concerning plaintiff \u201cTbat tbe said plaintiff did in many instances while acting as passenger conductor for defendant as aforesaid take up tickets on bis train and not punch and report said tickets to tbe company as it was bis duty to do, but took said tickets unpuncbed and in collusion with tbe agent at Norfolk, Ya., resold them and appropriated tbe proceeds, or a part thereof, to bis own use.\u201d\n(2) Tbat defendant falsely and maliciously published of and concerning plaintiff \u201cTbat tbe plaintiff bad theretofore, while acting as passenger conductor of tbe defendant company, taken cash fares received by him on tbe train from passengers and appropriated said cash fares to bis own use instead of turning tbe same in to tbe railroad company as was bis duty so to do.\u201d\nTbe defendant denied tbe allegations of tbe complaint, and sets up tbe defense of privileged communication. If defendant\u2019s agent said tbe things imputed to him as having been said by C. M. Starke, they were privileged communications and in tbe performance of bis official duty as superintendent of defendant company. The conversation with Starke was a publication. Hedgepeth v. Coleman, 183 N. C., 309.\nC. M. Starke, witness to whom tbe publication was made, testified tbat tbe charges were made by C. M. Cobb, superintendent of defendant company in one conversation on 2 October, 1923. Tbe question arises, can plaintiff have two causes of action growing out of one conversation ? We think not. There can be but one recovery.\nFrom a careful examination of tbe authorities, we find tbat it is laid down in Estee\u2019s Pleadings (4 ed.) see. 1717, as follows: \u201cA count of a petition in an action for slander, which sets out tbe entire conversation in which tbe slander was spoken, contains only one cause of action, although tbe conversation consists of several parts, each of which is actionable.\u201d\nTbe same principle is stated in Maxwell on Code Pleadings, p. 352 : \u201cWhen there are different sets of words, spoken at a particular time, although they charge distinct offenses, there will be but one cause of action. Tbe rule, in case of torts, being tbat each trespass or conversion or fraud gives a right of action, and but a, single one, however numerous tbe items of tbe wrong or damage may be.\u201d\nIn Cracraft v. Cochran, 16 Iowa, p. 304, it was said:' \u201cIt is true that the words set out in the petition charge the plaintiff, in effect, with two offenses, one of store breaking (Rey., sec. 4235) and the other of larceny (Rev., sec. 4237) ; but such charges were, as appears by the petition, made in the same conversation and at the same time, and of course gave but one right of action. It is well said by Strong, J., in Secor and others v. Sturgis and others, 16 N. Y., 548, that \u2018in the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be.\u2019 Under this rule, it matters not how numerous were the offenses charged in the same conversation; they, together, constitute but one cause of action. A plaintiff could not sue and recover for one of the slanderous charges specified, and then bring another action for another of the slanderous charges made in the same conversation; for the reason that he has but one cause of action growing out of the same conversation, although the items of slander were numerous. To allow a party thus to bring several causes for the same slanderous course, would be to sanction the splitting of actions, which both the common law and The Code prohibits.\u201d Galligan v. Sun Prtg. & Pub. Assn., 54 N. Y., Supp. p. 471; Thompson v. Harris, 91 Am. St. Rep. p. 187; (64 Kan., 124); Macdougall v. Knight, 25 Queens Bench Div. p. 1.\nPlaintiff in his brief says: \u201cThe plaintiff conceded at the trial, and concedes now, that the language charged in the first cause of action was qualifiedly privileged, but insists that there was evidence of actual malice sufficient to destroy the privilege. . . . The words alleged in the first cause of action were qualifiedly privileged and not actionable unless the plaintiff has shown actual malice.\u201d We think this proposition of law so sound and well settled that actual malice must be shown where the cause of action is qualifiedly privileged, that we do not cite authorities.\nBut defendant in its answer contends that the communication was privileged. We think it was qualifiedly privileged. The matter of absolute privilege is well stated in Newell Slander and Libel (4 ed.), sec. 350, as follows: \u201cIn this class of cases it is considered in the interest of public welfare that all persons should be allowed to express their sentiments and speak their minds fully and fearlessly upon all questions and subjects; and all actions for words so spoken are absolutely forbidden, even if it be alleged and proved that the words were spoken falsely, knowingly and with express malice. This rule is, however, confined to cases in which the public service or the administration of justice requires complete immunity \u2014 for example, words spoken in legislative bodies, in debates, etc., in reports of military officers on military matters to their superiors; words spoken by a judge on the bench and by witnesses on the stand. In all such cases the plaintiff cannot be heard to say that the defendant did not act under the privilege, that he did not intend honestly to discharge a duty, but maliciously availed himself of the occasion to injure his reputation.\u201d Qualified Privilege, sec. 389:\n\u201cIn the less important matters, however, the interests and welfare of the public do not demand that the speaker should be freed from all responsibility; but merely require that he should be protected so far as he is speaking honestly for the common good. In these cases the privilege is said not to be absolute but qualified; and a party defamed may recover damages notwithstanding the privilege if he can prove that the words were not used in good faith, but that the party availed himself of the occasion wilfully and knowingly for the purpose of defaming the plaintiff. In this class of cases it will be convenient to divide the occasions into four classes:\n\u201c(1) Where the circumstances of the occasion cast upon the defendant the duty of making a communication to a certain other person to whom he makes such communication in the bona fide performance of such duty.\n\u201c(2) Statements made for the protection of private interests.\n\u201c(3) Where the. defendant has an interest in the subject-matter of the communication, and the person to whom he communicates it has a corresponding interest.\n\u201c(4) Reports of the proceedings of courts of justice and legislative bodies.\u201d\nPearson, J., in Brooks v. Jones, 33 N. C., p. 260, defines malice: \u201cGeneral malice is wickedness, a disposition to do wrong, a \u2018black and diabolical heart, regardless of social duty and fatally bent on mischief.\u2019 . . . Particular malice is ill-will, grudge, desire to be revenged on a particular person.\u201d S. v. Long, 117 N. C., p. 799; S. v. Knotts, 168 N. C., p. 184.\nThe plaintiff, to show actual malice, relies upon ah unpleasant circumstance between himself and the witness Cobb some 15 years before the trial of the cause, and incidents since testified to \u2014 his viewpoint of Cobb\u2019s attitude towards him, slight and trifling.\nIn Lewis v. Carr, 178 N. C., p. 580, it was said: \u201cIn cases of qualified privilege the falsehood of the charge will not of itself be sufficient to establish malice, for there is a presumption that the publication was made bona fide. Fields v. Bynum, 156 N. C., 416; Gattis v. Kilgo, 140 N. C., 106; Ramsey v. Cheek, 109 N. C., 270.\u201d Harrison v. Garrett, 132 N. C., p. 176; Riley v. Stone, 174 N. C., 588; 17 R. C. L., p. 322, par. 65.\nNewell Slander and Libel (4tb ed.) part sec. 280, is as follows: \u201cTbe question of malice or no malice is for tbe jury. Tbe presumption in favor of tbe defendant arising from tbe privileged occasion remains till it is rebutted by evidence of malice; and tbe evidence merely equivocal, tbat is, equally consistent witb malice or bona fide, will do nothing towards rebutting tbe presumption. Tbe facts tendered as evidence of malice must always go to prove tbat tbe defendant bimself was actuated by personal malice against tbe plaintiff.\u201d\n\u25a0 Under tbe facts and circumstances of this case, to destroy tbe quali-fiedly privileged communication set forth in what is termed tbe first cause of action, we do not think tbe evidence of actual malice sufficient. Tbe case in tbe court below was tried out on tbe theory tbat tbe plaintiff bad two causes of action from tbe one conversation, but under tbe law there could be but one cause of action and one recovery. Tbe issues were submitted on two causes of action for tbe one conversation and tbe contest waged and tbe verdict rendered on these issues unexcepted to by either party to this action. -We do1 not think under such circumstances, although two alleged causes of action are set forth in tbe complaint as arising out of tbe one conversation, tbat a new trial should be granted, but tbat tbe allegations comprising what is denominated tbe second cause of action should be considered and determined on tbe record. This under plaintiff\u2019s evidence, taken to be true, is tbe only charge in tbe one conversation on which recovery can be bad. As stated, if tbe action bad' been brought for tbe one conversation only one recovery could be bad on tbe allegations in tbe two causes of action set forth in tbe complaint, but tbe first cause alleged in tbe complaint, from tbe view we take of tbe evidence, was qualifiedly privileged and no actual malice shown \u2014 no recovery could be bad.\nTbe conversation on which recovery can be bad is on tbe charge of taking cash fares \u2014 embezzlement or misappropriation, excess of privilege. This being true, tbe present action, denominated tbe second cause of action, can be determined on tbe record. Our liberal practice permits this. Under tbe facts and circumstances of this case, no exception being made to tbe issues, tbe first cannot be sustained \u2014 tbe second can.\nAs to tbe second cause of action, O. M. Starke, testified tbat C. M. Oobb, division superintendent of defendant, in tbe conversation \u201cTold me Captain Elmore bad been called up to bis office twice before tbat about cash fares; tbat tbe last time be was up there be bad told him bis casb fares did not come up to and correspond witb tbe other conductors\u2019; tbat soon after be bad this talk witb him and after tbat other time, tbat casb fares commenced to pick up and be supposed tbat was tbe time be commenced taking bis tickets up.\u201d\nThe defendant in the argument said: \u201cAt the outset, the attention of the court is respectfully directed to the vast difference between the language of the witness and that of the complaint as to the second cause of action.\u201d\nThe court below, on this aspect, we think, in a clear and accurate charge laid down the rule of law: \u201cThe third issue is, did the defendant speak of and concerning the plaintiff the words alleged in the second cause of action \u2014 that is the witness, Starke, testified that Cobb told him that Captain Elmore had been called up to his office twice before that about cash fares; that the last time he, Elmore, was up there, he was told by Cobb that his cash fares did not come up to and correspond with the other conductors; that soon after he had this talk with him and after that other time, that the cash fares commenced to pick up and he supposed that was the time he commenced taking his tickets up. Now, gentlemen of the jury, if you find from the evidence and by its greater weight, that the agent, Cobb, used that language on that day, and he thereby intended to charge Elmore with appropriating to his own use the cash fares, it would be your duty to answer the third issue \u2018Yes\u2019; if you do not so find, you should answer it No.\u2019 That would not be a privileged communication, because he did not have instructions from his superior, Mr. Newell, to have anything to do or say about cash fares being taken, and that would not be a qualified privileged communication, and, if you find that he did use the language and thereby intended to have it understood that Elmore had collected and appropriated to his own use cash fares, you should answer the third issue \u2018Yes\u2019; if you are not so satisfied, you would answer it No.\u2019 The evidence of Starke is \u2014 that Cobb did use that language, and Cobb says that he did not use it. You have the testimony of the two witnesses as to the language used, and the burden is upon the plaintiff to satisfy you that it was used, and if you find it was used, then you would answer the third issue \u2018Yes,\u2019 if you find it was not used, you would answer the issue No.\u2019 \u201d\nNewell Slander and Libel (4 ed.) part of par. 267, says: \u201cIn all cases of ambiguity it is purely a question for the jury to decide what meaning the words should convey to persons of ordinary intelligence. The question always is: How did the persons to whom the words were originally spoken or published understand them? \u2014 the legal presumption being that they were persons of ordinary intelligence. We must assume, too, that they gave to ordinary words their ordinary meaning, to local or technical phrases their local and technical meaning.\u201d 17 R. C. L., pp. 312-315, inclusive; Studdard v. Linville, 10 N. C., 474; McBrayer v. Hill, 26 N. C., 139; Pugh v. Neal, 49 N. C., 369; McCall v. Sustair, 157 N. C., 179; Cotton v. Fisheries Products Co., 177 N. C., 56; Vincent v. Pace, 178 N. C., 421.\nWalker, J., in Beck v. Bank, 161 N. C., p. 206, says: \u201cAs to the accusation he made, that plaintiff, H. L. Beck, had embezzled timber or money, was equivalent to charging them with the commission of a felony, or an infamous offense punishable by imprisonment in the penitentiary, \u2018as in eases of larceny\u2019 (Revisal, sec. 3406) (now C. S., 4268), the burden is east upon the defendant to prove the truth of the charge, or any matter in justification or mitigation. Osborn v. Leach, 135 N. C., 628; Ramsey v. Cheek, 109 N. C., 270; Harris v. Terry, 98 N. C., 131; McKee v. Wilson, 87 N. C., 300. Malice, which is an essential element of slander, is, generally speaking, presumed where the words are actionable per se, until the contrary is proved, except in those eases where the occasion is privileged or prima facie excuses the publication. This presumption, however, may be rebutted. Newell on Slander and Libel (2 ed.) p. 39 (5) and 319 sec. 12, and cases supra.\u201d Ivie v. King, 167 N. C., 174, rehearing denied 169 N. C., 261.\nThe charge made against the plaintiff and so understood by the jury was that of embezzlement or misappropriation of cash fares \u2014 a felony under C. S., 4268. This was actionable per se, and malice is presumed.\nIf C. M. Cobb\u2019s (division superintendent of defendant company) publication to C. M. Starke, as to collusion between plaintiff and Starke as to the tickets, was qualifiedly privileged, no actual malice being shown to destroy the privilege, yet the charge as to cash fares or embezzlement was actionable per se and malice is presumed from the felony charged. Defendant says, in answer to this, that if defamatory language was used about cash fares by Cobb, which is denied, he exceeded his authority and it is not liable.\nIn' 25 Cyc., p. 386, it is said: \u201cThat where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected and the fact that a duty, a common interest or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.\u201d Newell Slander and Libel (4 ed.) sec. 394, in part: \u201cA communication which goes beyond the occasion exceeds the privilege.\u201d In some jurisdictions it has been held \u201cthat expressions in excess of what the occasion warrants do not per se take away the privilege, although such excess may be evidence of malice for the consideration of the jury.\u201d 25 Cyc., 387.\nIn the present ease, the excess is per se actionable, and malice is presumed. It may be under different facts and circumstances \u2014 different pleadings and issues, expressions in excess may be evidence of malice, but here malice is presumed from the per se actionable words.\nIn Ange v. Woodmen, 173 N. C., p. 35, Hoke, J., citing a wealth of authorities, says: \u201cIt is now fully established that corporations .may' be held liable for negligent and malicious torts, and that responsibility will be imputed whenever such wrongs are committed by their employees, and agents, in the course of their employment, and within its scope.\u201d Munick v. Durham, 181 N. C., p. 193.\nIn Cook v. R. R., 128 N. C., p. 336, it was said: \u201cActing within the general scope of his employment, means while on duty, and not that the servant was authorized to do such acts.\u201d Gallop v. Clark, 188 N. C., p. 186; Sawyer v. Gilmers, Inc., ante, 7; Southwell v. R. R., ante, 417; Seward v. R. R., 159 N. C., 241; Cooper v. R. R., 170 N. C., 492; Cotton v. Fisheries Products Co., supra, 59; Jenkins v. Sou. R. R. Co. (S. C.), 125, S. E. Rep., 912.\nAfter the testimony of Elmore, the plaintiff again rested his case, and the defendant then offered as evidence the sixteen affidavits referred to in the testimony of C. M. Cobb and W. H. Newell. This evidence was objected to by plaintiff and the objection sustained, and defendant assigned this as error.\nC. S., 542, is as follows: \u201cIn an action for libel or slander it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it is sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation is controverted, the plaintiff is bound to establish on trial that it was so published or spoken. The defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to- reduce the amount of damages-; and whether he prove the justification on trial or not, he may give in evidence the mitigating circumstances.\u201d\nDefendant in its answer had the legal right under the statute to set up the plea of justification, to show the truth of .the charge. If found true by the jury, plaintiff could not recover. Hamilton v. Nance, 159 N. C., p. 59. It did not do this, but relied on, as its defense, privileged communication and denial. It could not offer any evidence to show the truth of the charge nor any evidence which tended to show the truth o-f the charge. The defendant had already been permitted; for the purpose of showing the good faith of Superintendent Cobb, to prove that he had these affidavits on the occasion of speaking the words, and also to show the names of the persons who made the affidavits and had permitted both Superintendent Cobb and Newell to state the purpose of these affidavits. This was all that was necessary to be shown as a basis of the alleged good faith of Superintendent Cobb. After this was done, the affidavits themselves could only tend to prove the truth of the charge. It would be noted that the affidavits were not offered until after the plaintiff had closed his evidence in rebuttal and the plaintiff Elmore had been cross-examined as to whether or not he did in fact take the tickets as charged. Then, in sur-rebuttal, the defendant offered these affidavits evidently for the purpose of contradicting his statement as to whether or not he did in fact take the tickets and in reply to his testimony on that point. In Burris v. Bush, 170 N. C., p. 395, it is said: \u201cThe statute (Rev., sec. 502) (now C. S., 542), permits a defendant in actions for libel or slander to allege \u2018both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of the damages; and, whether he prove the justification or not, he may give in evidence the mitigating circumstances/ but, in the absence of a plea in justification or mitigation, evidence of the truth of the charge is incompetent. Upchurch v. Robertson, 127 N. C., 128; Dickerson v. Dail, 159 N. C., 541.\u201d\nNewell Slander and Libel (4 ed.) p. 758, part sec. 692, is as follows: \"Truth under the plea of the general issue. In most jurisdictions under this plea the defendant cannot be permitted to give in evidence the truth of the defamatory matter, either in bar of the action or in mitigation of damages.\u201d\nIf, in a plea of justification \u2014 the truth of the charge had been pleaded, defendant could have produced evidence to sustain the plea allowed it by statute. It could have had the witnesses at the trial, who made the affidavits, to show the plaintiff\u2019s conduct \u2014 collusion with the ticket agent Starke to defraud the defendant \u2014 but the affidavits were nothing more than hearsay, and incompetent, for any purpose other than to show the good faith of defendant and they had been used and spoken of by witnesses for this purpose. This evidence was addressed to the first cause of action and not now material from the position we take as to that cause.\nThe final exception and assignment or error we cannot sustain, which is as follows: \u201cFor that the court declined to give the instructions prayed by defendant, \u2018The court charges you that in no aspect of this case is plaintiff entitled to punitive damages, or smart money, and 'the jury in assessing damages, if you reach that issue, will not allow any such damage.\u2019 \u201d\nThe court below charged the jury as to punitive damages: \u201cAs to punitive damages, gentlemen of the jury, you are not compelled or required by law to give punitive damages, but that is a matter in your discretion. You may in your discretion award punitive damages for the purpose.of punishing the defendant. Punitive damages are punishing damages. Punitive damages are awarded to the plaintiff when he has been maliciously injured by some act or wrong-doing of the defendant, and tbe damages are awarded to tbe plaintiff as a punishment to tbe defendant. Tbat is entirely in your discretion.\u201d\nWe tbink, under all tbe facts and circumstances of tbis case, tbe charge was correct and fully sustained in Ford v. McAnally, 182 N. C., p. 419; Baker v. Winslow, 184 N. C., p. 5, and cases cited. There was no separate issue as to punitive damages, and on tbe record there is no way to ascertain if any of tbe damages awarded plaintiff were punitive.\nTbe first cause of action alleged in tbe complaint, for tbe reasons heretofore given cannot be sustained. Tbe publication was qualifiedly privileged, and no sufficient actual malice shown by tbe evidence to destroy tbe privilege.\nTbe second cause of action was brought by plaintiff against tbe defendant for publication made by defendant\u2019s agent of a charge or accusation against him of embezzlement or misappropriation of cash fares \u2014 which is a felony. Tbe jury found tbat tbe publication made was false, and tbe words are actionable per se \u2014 malice is presumed\u2014 and damages were awarded plaintiff. It was in evidence tbat tbe plaintiff bad been in tbe employ of defendant company for 29 years and offered evidence of about 75 witnesses from all over Eastern North Carolina and parts of Virginia as to bis good character.\nUnder our- statute tbe defendant could have set up in its answer tbat tbe charge was true, tbe plea of justification. If it bad evidence sufficient to sustain tbis plea and tbe jury believed it, plaintiff could not have recovered. It denied tbe allgation, plead privileged communication, and made no plea of justification. It could have in its answer set up mitigating circumstances to reduce damages. It did not do* tbis. Tbe jury by its verdict has said tbat defendant has falsely and maliciously slandered plaintiff. A cause of action for slander has come down to us from time immemorial. Slander is so hurtful tbat it is a Proverb : \u201cTbe words of a talebearer are as wounds.\u201d Material things are trifling in comparison with character \u2014 \u201cA good name is rather to be chosen than great riches.\u201d Tbe record shows tbat tbe case was carefully tried in the' court below. It has been ably argued here. On tbe first cause of action a nonsuit should have been granted, and tbat cause of action dismissed. \u25a0 On tbe second cause of action, we can in law discover no error.\nError as to first cause of action.\nNo error as to second cause of action.\nStacy, C. J., dissents; Vabseb, J., not having beard tbis case, did not take part in tbe decision.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "C. M. Cobb, for defendant,", "\"W. H. Newell, testified for defendant,", "Capt. J. G. Elmore, the plaintiff,", "Geo. G. Green, Ashby Dunn and F. L. Jravis for plaintiff.", "Franh 8. Spruill, John H. Kerr, W. L. Long and D. Mac. Johnson for defendant." ], "corrections": "", "head_matter": "J. G. ELMORE v. THE ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 13 May, 1925.)\n1. Slander \u2014 Corporations\u2014Employer and Employee \u2014 Qualified Privilege.\nWhere the superintendent of a railroad company in investigating a conductor employed by the company as to whether the conductor in collusion with its agent, was not punching the tickets taken from passengers on his train, but selling them again, and misappropriating the money, tells the agent that the conductor was so acting when such was not the fact, which is the subject-matter in the conductor\u2019s action against the company for slander, the words of the superintendent are qualified privilege, and in the absence of malice are not actionable.\n2. Same \u2014 Malice Implied.\nAnd where the superintendent under these circumstances, has informed the agent in his conversation that the conductor has taken up cash fares from passengers and lias misappropriated the money, the false words so spoken are actionable per se, implying malice in law, and being spoken by the superintendent in pursuance of his duties to the company, such words are actionable, and the company may be held liable in damages.\n3. Same \u2014 Damages.\nWhere in pursuance of his duties to his employer a railroad company, its superintendent has uttered slanderous words to its agent in reference to the conductor, though in the conversation the superintendent may have spoken words that were actionable upon several charges, they can be made the subject of only one action.\n4. Same \u2014 Judgment\u2014Appeal and Error.\nWhere in an action for slander the words falsely spoken were in part quasi privileged and not actionable and in part part actionable, and damages have been awarded in plaintiff\u2019s favor by the jury upon separate issues, the Supreme Court on appeal, may affirm the judgment on one of the issues, and reverse the judgment on the other.\n5. Pleadings \u2014 Evidence\u2014Justification.\nWhere the defendant, in an action of slander, has pleaded qualified privilege in defense only, he may not contend on the trial in justification that the alleged defamatory words were true.\n6. Same \u2014 Good Faith.\nWhere the defamatory matter in an action for slander is the published statement of the defendant corporation, uttered by its superintendent in the discharge of his duties, affidavits upon which he had based his remarks are inadmissible as hearsay.\nStacy, C. J., dissenting; Varser, J., not having heard this case, did not take part in the decision.\nAppeal by defendant from Lyon, J., and a jury, at September Special Term, 1924, of Halifax.\nThe plaintiff who had been an employee for 29 years of defendant company, as flagman, baggage master, freight conductor and finally as a passenger conductor, brought this suit against defendant company for slander.\nThe first cause of action is as follows: \u201cThat on or about 2 October, 1923, the defendant company, through O. M. Oobb, its superintendent, unlawfully and maliciously said and published of and concerning the plaintiff in the presence of one C. M. Starke, and others, the following false and defamatory matters in substance,, to wit: \u201cThat the said plaintiff did in many instances while acting as passenger conductor for defendant as aforesaid take up tickets on his train and not punch and report said tickets to the company as it was his duty to do, but took said tickets unpunched and in collusion with the agent at Norfolk, Va., resold them and appropriated the proceeds, or a part thereof, to his own use.\u201d\nThe second cause of action is as follows: \u201cThat on or about 2 October, 1923, the defendant, through. C. M. Oobb, its superintendent, unlawfully, falsely and maliciously uttered and published of and concerning the plaintiff, in the presence of one O. M. Starke, and others, the following false and defamatory slander in substance, to wit: That the plaintiff had theretofore, while acting as passenger conductor of the defendant company, taken cash fares received by him on the train from passengers and appropriated said cash fares to his own use instead of turning the same in to the railroad company as was his duty so to do.\u201d\nThe defendant answering the first cause of action, says: \u201cArticle 3 of the complaint is not true and is denied. But, if defendant company\u2019s agent and employee, C. M. Cobb, had said the things which are imputed to him, as having been said to C. M. Starke, and others, which is denied, the same are privileged communications for that the said C. M. Cobb was and is superintendent of the Norfolk district of defendant company, and, as such superintendent, had an interest or a duty in the matter under discussion, or alleged to have been communicated for that it came within the duties delegated to and to be performed by his office and position. And said C. M. Starke was at the time the ticket agent of defendant company at Norfolk, Ya., and is the person or individual referred to by plaintiff in his complaint as being in collusion with plaintiff. As- such person, individual and agent, the said Starke has a very vital corresponding interest or duty in and about the matter alleged to have been communicated. The alleged statement or communication, if made, was in protection of said Cobb\u2019s interest or in the performance of his official duty as superintendent aforesaid.\u201d\nThe defendant\u2019s answer to the second cause of action is the same as the answer to the first cause.\nThe issues submitted to the jury and their answers thereto were as follows:\n\u201c1. Did the defendant maliciously speak of and concerning the plaintiff- in substance, the words alleged in the first cause of action in the complaint? Answer:\u2018Yes.\u2019\n\u201c2. If so, what damage is the plaintiff entitled to recover ? Answer: \u2018$10,000.\u2019\n\u201c3. Did the defendant speak of and concerning the plaintiff in substance the words alleged in the second cause of action set out in the complaint? Answer: \u2018Yes.\u2019\n\u201c4. If so, what damage is the plaintiff entitled to recover ? Answer: \u2018$10,000.\u2019 \u201d\nC. M. Starke, for plaintiff, testified, in part, as follows:\n\u201cMy name is C. M. Starke; I live in Norfolk, and have lived there six years. Prior to 2 October, 1923, I was ticket agent for the Atlantic Coast -Line Railroad Company at York Street Station, Norfolk. I know C. M. Cobb, wbo at the time was superintendent of the Norfolk Division of the Atlantic Coast Line Railroad Company, and my office was in his jurisdiction. On 2 October, I was notified by Mr. Cobb to report to his office at 9 o\u2019clock. He told me Captain Elmore was to be let out of the service at Rocky Mount, and he said it was on account of Captain Elmore\u2019s collecting tickets and not punching them and turning them in, but that he put them back to be resold by me and we divided the proceeds. Captain Elmore never returned any unpunched tickets to me to be resold; I never divided any proceeds from such tickets being resold. He told me Captain Elmore had been called up to his office twice before that about cash fares; that the last time he was up there he had told him his cash fares did not come up to and correspond with the other conductor\u2019s; that soon after he had this talk with him. and after that other time, that the cash fares commenced to pick up and he supposed that was the time he commenced taking his tickets up. In respect to this conversation Mr. Cobb again talked to me about the 15th I think it was. He called me up over the telephone and said he wanted to see me and asked me to come to his office. I went to his office and he told me he had said something about Captain Elmore in our other conversation and asked me if I, had said anything about it to Captain Elmore, and I said No,\u2019 and he said he was glad of that, bec&use he thought maybe I said something about it, and he was glad because he had been \u2018shooting off his lip\u2019 or his mouth or something. I had no conversation with him at a subsequent time.\u201d\nThe plaintiff then offered evidence of about 75 witnesses from all over Eastern North Carolina and parts of Virginia, as to his good character, and also several witnesses as to the good character of the witness, Starke, and rested his case.\nC. M. Cobb, for defendant,\ntestified, in part:\n\u201cI was born near Tarboro, N. 0., at Mildred; am 57 years old; have lived part of the time at Mildred, Tarboro and Norfolk; have been working for the Coast Line Railroad nearly thirty-three years; have held the position of flagman, baggage master, freight conductor, conductor on passenger trains, trainmaster and superintendent. \"When I was trainmaster I lived in Tarboro; when promoted to superintendent of the division I lived in Norfolk. As superintendent, my duties involved the investigation of matters such as we have been discussing here. I first had knowledge that Captain Elmore was under investigation when I was notified to investigate Agent Starke the day before, 1 October, 1923. The police department did the investigating. W. ~W. Morrison was chief of that department. I had no knowledge whatever that the investigation was being made. I had nothing whatever to do with the initiation of the investigation. I received my knowledge from Mr. W. H. Newell, General Superintendent, that the investigation of Elmore was being made. He called me to his office on 1 October, and showed me a bunch of affidavits, giving me the duplicates of those he had, and told me \u2014 my first knowledge was when the superintendent called me to his office, and he showed me these various affidavits giving me duplicates, and he keeping the originals, which brought out the fact of the irregularity in handling of tickets. That was the first day of October, 1923. I took those affidavits home. They came from the police department, Mr. Morrison\u2019s department. I had instructions to take these affidavits and have Ticket Agent Starke in Norfolk to come to my office and go over the same with him. These affidavits were sixteen in number. As these affidavits had reference to irregularities between O. M. Starke and Conductor Elmore, I handled according to instructions. I had Starke to come to my office on the morning of the 2d, at nine o\u2019clock, went over the affidavits with him in detail, the affidavits which I hadj showing what each man said he had done. (The court admitted the above testimony of Cobh to show good faith and want of malice.) . . . Elmore was involved inivarious affidavits showing that tickets were bought from Starke, used on Elmore\u2019s train, and were brought back to Starke and he sold them, again. Some tickets showed they had been bought twice. I don\u2019t know as I could tell you exactly how many had been returned by other conductors. I don\u2019t remember, but the affidavits will show. These tickets were all numbered. When the conductor took up these tickets he was required to punch them and surrender them. Each conductor has an individual punch, showing the different marks and from it you can tell which conductor made the punch. . . . No reference was had to cash fares. Captain Elmore\u2019s name was not mentioned at all, except when I asked if any one other than he and Captain Elmore had been involved with respect to the irregular handling of tickets. No other reference was made to Captain Elmore in that conversation. I did not say anything to. Mr. Starke about the cash fares. I was present when an investigation was held in the office of Mr. Newell, at Captain Elmore\u2019s request. ... I had a second conversation with Starke ten or fifteen days later. I called Starke up that morning and asked if he would come down to the office, as I wanted to see him and have a talk with him. He came in and wanted to know what I wanted. I said, \u2018I want to know if you will sign a statement in reference to the things you told me about the other day.\u2019 He remarked, T haven\u2019t told you anything.\u2019 He seemed mad and in a very different attitude altogether from the first time. There was nothing about my \u2018Shooting my mouth off.\u2019 Nothing of the kind occurred because of bis attitude in tbe beginning. I could see be was very rebellious. Nothing of tbe kind occurred. Tbe affidavits upon wbicb I acted and upon wbicb I was making tbe investigation were furnished me by Mr. Newell, tbe general superintendent. I bad absolutely nothing to do with procuring them. In tbe course of this conversation nobody\u2019s name was mentioned as involved in this matter except Captain Elmore and Mr. Starke. In making this investigation I was performing my duty simply and solely as an official of tbe company. I bad no feeling of animosity towards Elmore at all. I didn\u2019t know be was involved in these affidavits until 1 October. I took action then pursuant to instructions. There would not have been any investigation except under tbe directions of tbe general superintendent, upon these affidavits. I remember tbe names of some of tbe gentlemen who made tbe affidavits.\u201d\n\"W. H. Newell, testified for defendant,\nin part:\n\u201cMr. Cobb is superintendent of tbe Norfolk District, and I am general superintendent. My division is from Richmond, Ya., to Augusta, Ga., and western part of South Carolina. My division lies in three different states, Virginia, North Carolina and South Carolina. I h\u00e1ve known Mr. Cobb ever since be has been in tbe service. I think about thirty years. I gave him bis first job on tbe \u25a0 railroad. He started as flagman and worked bis way up. He has been superintendent of tbe Norfolk district for five or six years. As such superintendent be would not be expected to investigate matters except when tbe police department bad made investigation and made report to tbe general \u25a0 superintendent for such action as be might take. All investigations of this kind are made by tbe police department. When I came into possession of these affidavits we have been referring to I called Mr. Cobb to come to my office and we went over all of these affidavits, and we arranged that be should call Mr. Starke, tbe ticket agent in Norfolk, to bis office, and I was to call Conductor Elmore to my office simultaneously, wbicb I think was done at 9:30 the, morning of 2 October and I showed these affidavits to Mr. Cobb when be came to my office. I gave them to Superintendent Cobb, tbe copies, and be was to call Starke to bis office and I was to call Conductor Elmore to my office at tbe same time. Tbe import of these affidavits was that Starke and Elmore bad been charged with irregular handling of tickets sold at tbe Norfolk Agency and were involved in these affidavits we bad. Tbe affidavits were that tbe agent at Norfolk was selling tickets two or three different times for various trains and that tickets bad been returned to Norfolk for resale uncanceled. Tbe affidavits were that tickets bad been sold by tbe Norfolk agent some more than twice and tbe parties buying them bad ridden tbe trains and they were not turned in to tbe auditor as provided for by the rule, but had come in on later or subsequent trains by different conductors under different punch marks, and that there were as many as four or five conductors who had turned in these tickets with their own punch that had been purchased on certain dates previous for Captain Elmore\u2019s train.\u201d\nOn cross-examination, he said, in part:\n\u201cSubsequent to the conversation I had with Mr. Cobb, Captain Elmore was called to my office. I had him in my office on 2 October, at the same time that Starke was called to Mr. Cobb\u2019s office. He asked for an investigation several times after he had been dismissed from the service. I think in about five or six days after the 2d of October he asked for another investigation. I took him off the train on the 2d day of October, and ordered him to come to my office; took him off the train and put somebody else in his place to run the train. He was not formally discharged until five or six days later. He requested an investigation under the rules under which he was working, and when he requested it we were willing to give it to him. Mr. Cobb was not in my office as a witness.\u201d\nRebuttal EvideNCe\nCapt. J. G. Elmore, the plaintiff,\ntestified, in part:\n\u201cI am fifty-two years old. I was born and raised at Mt. Olive, Wayne County. I have been in the service of the railroad twenty-nine years. Before that I taught school and worked in telegraph office a year. I have been with the A. C. L. Railroad twenty-nine years. I first worked in the telegraph office, then flagman, baggage master, freight conductor and passenger conductor. I was passenger conductor on 2 October, 1923, and ran between Rocky Mount and Norfolk and Goldsboro and Norfolk. I would make one trip for a. week night run to Rocky Mount, and then for two weeks through to Goldsboro on different trains. One week I would work the night run to Rocky Mount and then two weeks I would have the day run to Goldsboro. We would alternate upon the trains running from Norfolk to.Rocky Mount and Goldsboro. I have been passenger conductor since 1912, extra passenger conductor since 1910. About fifteen years ago Mr. Cobb came to me one morning and said he was going to report me to the Masonic Lodge. I was a member of the Masonic Lodge at Weldon. He said, 'I am going to report you to the Masonic Lodge about some remarks respecting me as to some remarks about Mrs. and me,\u2019 because I did not go to him first about it. Said he understood I had made some remarks about him and agent .\u2019s wife, that he had had improper relations with her or had made improper advances to her. He said it to me twice. He said he was going to report me to the Masonic Lodge, and I told him he could do> so, it was already known to tbe Masonic Order. He first stated that the first he knew of it was the day before when Sinclair had told him that' I had made the remark that if the reports were not true, some one ought to go to him and tell him about it, and that if it were true his face ought to be broken. Then he said that he hadn\u2019t slept any for several nights, that it worried him so, and that he had sent his wife to Norfolk to keep her from finding it out. He said Sinclair had told him the day or night before was what he first told me. He said that Sinclair told him that I had said if it were true his face ought to be broken, and if it were not true somebody ought to tell him.\u201d He further stated: \u201cMr. Cobb has acted very indifferent and cold towards me since that time,\u201d etc. ... \u201cI never took up tickets on my train and didn\u2019t turn them in, and didn\u2019t have a collusion with Starke to resell the tickets and divide the proceeds. I never took up a ticket and failed to return it to the company. Mr. Cobb did have me there and asked me some questions about cash fares. I remember once he asked me in Norfolk why it was that some' of the other conductors turned in so much more cash fares than I did. I told him the reason was that I did not run Saturdays. I laid off on Saturdays every time I possibly could, and Saturdays and Mondays are the highest days. There are more cash fares taken up on Saturday and Monday than on other days. In addition to that many of the passengers had been using mileage and some reported that in as cash fares. \u00a5e had no regulations for handling as such, and I did not do it. Saturdays the crowds are going home to spend Sunday, and Monday they are returning. Saturday and Monday have the heaviest travel of- any other day of whole week through. I lay off every Sunday that I could so that I could spend the day with my family. My family lived in Norfolk. ... At the time he asked me about my cash fares as compared to the other conductors and I gave him an explanation he seemed satisfied about it. I thought he was until I was told about what he said about it to Starke. That happened a couple of years ago. I thought that my explanation of the matter had satisfied him. . . . When this matter occurred these various reports were made out in the form of affidavits and Mr. Newell read them to me. He called me to his office and nobody was present but he and I. He asked me to make explanation and I told him it was just like a clap of thunder out of a clear sky. T was very much surprised.\u201d\nHe denied that he took up tickets and didn\u2019t turn them in and denied collusion with Starke to resell the tickets and divide the proceeds. He denied that he collected cash fares and never turned in the money.\nThe defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court. The material ones and other necessary facts will be considered in the opinion.\nGeo. G. Green, Ashby Dunn and F. L. Jravis for plaintiff.\nFranh 8. Spruill, John H. Kerr, W. L. Long and D. Mac. Johnson for defendant." }, "file_name": "0658-01", "first_page_order": 736, "last_page_order": 752 }