Daniel v. Wilkerson, 35 N.C. 329, 13 Ired. 329 (1852)

June 1852 · Supreme Court of North Carolina

35 N.C. 329, 13 Ired. 329

CHESLEY DANIEL vs. DAVID S. WILKERSON.

It seems, that, although a proposition to compromise, rejected by the other party, could not be heard, yet admissions of facts, made by the defendant in the conversation with the party proposing the compromise. But there can he no doubt, that such admissions are competent evidence, when made to one, who informs the defendant, that he has no authority to compromise.

Appeal from the Superior Court of Law of Granville County, at the Spring Term 1852, his Honor Judge Caldwell presiding.

The action is for slanderous words spoken of the plaintiff, imputing to him the crime of stealing a hog belonging to the defendant; and was tried on the general issue. On the part of the plaintiff, a witness deposed, that the defendant said to him, the plaintiff had cut the hamstrings of several of his hogs, and that one of them was missing: tha^ -he had watched for the buzzards and could see none ; and that he believed the plaintiff had killed and eaten the mis. sing hog, and he intended to charge him with it as stolen property, and put the law in force against him to the full extent, as lie, the plaintiff, was as big a rogue as any negro iri the county. The witness said, on cross-examination, that, in speaking of putting the law in force, he understood the defendant to-mean, the fence law. On the part of the plaintiff, another witness deposed, that the defendant about the same time told the witness, that the plaintiff had cut the hamstrings of his, the defendants’ hogs, and had done worse than that; for, he had cut a piece out of the ham of one of them, and he believed the plaintiff had killed and eaten it. On the part of the defendant, it was stated in defence, that he did not mean to charge the plaintiff with a felony, but meant only, that he would proceed against him under the statute for keeping an insufficient fence, and worrying his hogs that got into thepIaintffPs field ; and in support of his defence, the defendant gave in evidence, a warrant, which, a few days after speaking of the words, he took out against the plaintiff" under the fence law. The plaintiff them offered to prove by another witness, that, after this suit was brought, the defendant stated to the witness, that he had charged the plaintiff with stealing, his hog, but that he did so in a passion, and was sorry for it. This was objected to for the defendant, on the ground, that the admission was made pending-a treaty of compromise between the parties. On that point, the witness deposed, that he had been the plaintiff’s surety for the prosecution of this suit, and that the defendant, under the impression, as the witness thought, that he was the agent of the plaintiff, applied to the witness-to have the suit compromised, and that the witness immediately informed the defendant, that he was not the plaintiff’s agent. But the witness further stated, that he expressed the opinion to the defendant, that ft Would be settled, if he would reinstate the plaintiff, by paying the costs he had then incurred, and would say, in tlie’-jpresence of some of the neighbors,- that he was sorry-for what he had said-, and that thereupon the defendant stated to the witness, that he was willing to do so ; for, that in a passion he had charged the plaintiff with stealing a hog, and was sorry for what he had said: that the witness made this known to the plaintiff, and he assented to compromise on those terms, but the defendant afterwards refused. The Court was thereupon of opinion, that, although a proposition to compromise, rejected by the ot.ier party, could not be heard, yet admissions of facts made by the defendant in the conversation with the witness were competent evidence, and the witness was allowed to state to the jury, that the defendant told him, that in a passion he had charged the plaintiff with stealing his hog, and was sorry for it. The Court instructed the jury, that if they believed the defendant charged the plaintiff with stealing his -hog the plaintiff was entitled to recover, whether the charge was made in express terms, or by implication or inuendo. Alter a verdict aud judgment for the plaintiff, the defendant appealed.

E. G. Reade, for the plaintiff,

J. II. Bry-an, for the defendant.

Ruffin, C. J.

Although the cases upon the question of evidence are not entirely in unison, yet in some of them the distinction mentioned by his Honor is taken, and, perhaps, enough may be found in the books to' establish the rale to be as laid down on the trial, if this had been a distinet admission of fact made during a treaty of compromise between the parties or their agents. But the decision of that point is at present unnecessary, because it does not seem to the Court, that this can be fairly treated as an admission made upon such an occasion. For the witness said .expressly, that he was not the plaintiff’s agent, and therefore he had no authority to treat for a compromise, and that he distinctly told the defendant so at the outset* It was after that, the defendant made the admission as to the nature of the charge he had uttered against the plaintiff; and there seems tobe no ground on which it could be distinguished from a similar declaration to any other person, or on any other occasion. The witness was not even made by the defendant his agent to make a compromise with the plaintiff. He might, indeed, have expected, that the witness, from his good will for the parties and his relation to them, would communicate to the plaintiff what had passed, and thus pave the way for entering upon a treaty of compromise, But he certainly did not consider, that the witness had authority of.any sort in the matter; for, without hesitation, he retracted every thing, when informed that the piainliff was willing to make a compromise — not feeling bound by anything he had said to the witness, or the witness had said to the plaintiff. 1 he case, then, seems to be simply this: The .defendant, on being sued for slander, informed his friend what slander he had spoken of the plaintiff, and the circumstances under which he had spoken the words, and that he then regretted it, and was anxious to have it settled. There was no treaty then pending; nor, indeed, any authority to the witness to open one; and therefore the rule, as to admissions during a compromise, does not apply; hut the defendant’s declarations are admissions, with liberty to the jury to allow them such weight as to them it might seem they ought to carry, from the circumstances under which theyjyere made.

There is no error in the instructions to the jury. His Honor did not use the term inuendo in its technical sense, in pleading, but in the popular one of artful hint or insinuation. Indeed, the use of the word was altogether superfluous, as (he charge was direct, if the witnesses were believed at all..

Per Curia-m. ; Judgment affirmed.