Oates v. Wachovia Bank & Trust Co.

Stacy, C. J.

Are the words “You know William Oates’ check is no good; all they have is- what they get from the old lady, or beat the old lady out of,” viewed in the light of the circumstances under which they were spoken, fairly susceptible of the meaning, within the understanding of those to whom they were addressed or published, that the speaker meant to charge, and, by fair intendment, did charge, the maker with having uttered a worthless check? We think so.

Castelloe v. Phelps, 198 N. C., 454 , 152 S. E., 163 .

It is a misdemeanor for any person knowingly to- utter a worthless check in this. State. Chap. 62, Public Laws, 1927;

S. v. Yarboro, 194 N. C., 498 , 140 S. E., 216 . And such act involves moral turpitude if done with intent to defraud. C. S., 4283 and 4173;

S. v. Yarboro, supra; Jones v. Brinkley, 174 N. C., 23 , 93 S. E., 372 ;

Gudger v. Penland, 108 N. C., 593 , 13 S. E., 168 ;

Barnett v. Phelps, 97 Ore., 242 , 191 Pac., 502 , 11 A. L. R., 663; 17 R. C. L., 265, et seq.

Even so, the defendants contend that the charge of uttering a worthless check is actionable per quod and not per se. Deese v. Collins, 191 N. C., 749 , 133 S. E., 92 ;

Payne v. Thomas, 176 N. C., 401 , 97 S. E., 212 ;

Gudger v. Penland, supra; McKee v. Wilson, 87 N. C., 300 ;

Pegram v. Stoltz, 76 N. C., 349 ;

Hurley v. Lovett, 199 N. C., 793 , 155 S. E., 875 ;

Pollard v. Lyon, 91 U. S., 225 ; Note, 12 Am. Dec., 39 , et seq.;

17 R. C. L., 264. The difference between the two is, that if actionable per se, malice and damage are conclusively presumed, but if actionable only per quod, both malice and special damages must be alleged and proved.

Walker v. Tucker, 220 Ky., 362 , 295 S. W., 138 , 53 A. L. R., 547.

However this may be, the plaintiff says there is evidence of falsity, malice and special damages on the present record sufficient to overcome the demurrer.

Deese v. Collins, supra; Newberry v. Willis, 195 N. C., 302 , 142 S. E., 10 ;

Pentuff v. Park, 194 N. C., 146 , 138 S. E., 616 , 53 A. L. R., 626;

Elmore v. R. R., 189 N. C., 658 , 127 S. E., 710 ;

Pollard v. Lyon, supra.

The defendants contend otherwise.

The decisions are to the effect that a publication claimed to be defamatory should be considered in the sense in which those to whom it was addressed, or who heard it, would ordinarily understand it. When thus considered, if its meaning be such as to bear but one interpretation, it is for the court to say whether- that signification is defamatory. On the other hand, if it be capable of two meanings, one actionable and the other not, it is for the jury to determine which of the two was in *17 tended and so understood by those to whom it was addressed or by whom it was beard.

Washington Post Co. v. Chaloner, 250 U. S., 290 ;

Publishing Co. v. Smith, 149 Fed., 704 . The circumstances of the publication are to be considered.

Riddell v. Thayer, 127 Mass., 487 . And the hearers’ knowledge of facts which would influence their understanding of the words used is also pertinent.

Sydney v. Pub. Corp., 242 N. Y., 208 . Indeed, it has been held in this jurisdiction (as stated in 2nd headnote, Webster v. Sharpe, 116 N. C., 466 , 21 S. E., 912 ) that words spoken to a person or in his presence, which,, taken in connection with the whole conversation, amount to- a charge of a crime (storebreaking), to the reasonable apprehension of the persons hearing them, are slanderous and defamatory, although they do not, in terms, charge the crime. See, also, 17 R. C. L., 266. The case is one for the jury. 17 R. C. L., 307.

Reversed.

ClakksoN, J., not sitting.