
    J. K. COTTON v. FISHERIES PRODUCTS COMPANY et al.
    (Filed 30 March, 1921.)
    1. Appeal and Error — Instruction—Evidence—Harmless Error.
    A statement of a party’s contention by the trial judge with instruction that it was not supported by the evidence, cannot be construed on appeal to prejudice the other party, upon the idea that it tended to create an impression unfavorable to him.
    2. Libel and Slander — Slander—Damages—Punitive Damages.
    In an action of slander the jury may awgrd, in its discretion, punitive damages upon evidence tending to show that the defendant’s conduct had been malicious or wanton, displaying a spirit of mischief towards the plaintiff, or of reckless and criminal indifference to his rights.
    3. Same — Actionable Per Se.
    Where the employer is liable in an action of slander for the words uttered or spoken by his employee, such words, when amounting to a charge of larceny, are actionable per se.
    
    
      4. Same — Public Policy — Evidence—Measure of Damages.
    Punitive damages allowable in the sound discretion of the jury, in an action of slander, are on the ground of public policy, for example’s sake, not because of the plaintiff’s right to the money, except that it is assessed in his suit, and while the amount may not be in excessive disproportion to the circumstances of contumely and indignity present in each particular case, it will not per se be reduced, because as a result the plaintiff’s character and standing in the community has not thereby been impaired.
    Appeal by defendants from Daniels,' J., at August Term, 1920, of BeuNswicic.
    Civil action for slander, brought by plaintiff against tbe Fisheries Products Company, Tbomas H. Hayes and H. B. Tberian, president and manager, respectively, of said corporation. Upon motion duly made, tbe court directed a verdict in favor of the defendant, Tbomas H. Hayes; and there was a verdict against tbe other two defendants for damages in tbe sum of $6,500. His Honor reduced this award to $3,500, and entered judgment in favor of plaintiff for said amount. Tbe defendant corporation and H. B. Tberian excepted and appealed.
    
      Robert W. Davis and John D. Bellamy & Sons for plaintiff.
    
    
      Rountree & Carr and G. Ed. Taylor for defendants. ■
    
   Stacy, J.

This cause was before tbe. Court at a previous term and is reported in 177 N. C., 56. Tbe first appeal was from a judgment overruling defendants’ demurrer. This was affirmed, and tbe case is now before us upon exceptions noted on tbe trial. Tbe material allegations, which upon tbe bearing were supported by evidence and tbe principles of law arising thereon, are fully set out and considered in the former opinion of the Court, and need not be repeated here. The ease seems to have been tried in accordance with the opinion heretofore rendered and the same doctrine more recently announced in Vincent v. Pace, 178 N. C., 421.

The only exceptions deserving special attention are those relating to the charge on the issue of damages.

The plaintiff alleged and contended that he had suffered special damages, in that certain business negotiations which he had on hand were broken up as a result of the defendants’ alleged wrongful acts. The court in its charge to the jury took occasion to mention these contentions of the plaintiff, but stated that no evidence had been offered to support this position, as there was no testimony tending to show that the matters and things complained of in this cause had been brought to the attention of the parties with whom plaintiff was negotiating. Defendants excejoted to this portion of the charge on the grounds that the giving of a contention not warranted by the evidence was calculated to create in the minds of the jurors an impression that the court thought the evidence was sufficient to submit the question to them. ¥e are unable to agree with this conclusion. The court statement that the plaintiff was making a contention unsupported by evidence would hardly be considr ered hurtful or prejudicial to the defendants. This was tantamount to saying that the plaintiff’s contentions to this extent were not well founded. The exception must be overruled.

The defendants’ eighth and last exception relates to the charge on punitive damages. The basis of this assignment is that there is no evidence from which the jury would be justified in awarding such damages, and that it was, therefore, error to instruct them upon the subject.

We think his Honor properly submitted this phase of the case to the jury for their consideration. Not only did the language of defendant’s employees amount to a charge of larceny, actionable per se under our law, but the accompanying acts in causing plaintiff’s goods to be opened publicly and searched in the presence of divers persons gave such pronounced color and tone to the entire setting of the case as to warrant the jury in assessing exemplary damages. Bowden v. Bailes, 101 N. C., 612.

Punitive damages, sometimes called smart money, are allowed in cases where the injury is inflicted in a malicious," wanton, and reckless manner. The defendants’ conduct must have been actually malicious or wanton, displaying a spirit of mischief towards the plaintiff, or of reckless and criminal indifference to his rights. "When these elements are present, damages commensurate with the injury may be allowed by way of punishment to the defendants. But these damages are awarded on the grounds of public policy, for example’s sake, and not because the plaintiff bas a right to tbe money, but it goes to bim merely because it is assessed in bis suit. In a proper case, like tbe one at bar, botb tbe awarding of punitive damages and tbé amount to be allowed, if any, rest in tbe sound discretion of tbe jury. Cobb v. R. R., 175 N. C., 132; Fields v. Bynum, 156 N. C., 413; Hayes v. R. R., 141 N. C., 199; Smithwick v. Ward, 52 N. C., 64.

Tbe fact tbat plaintiff’s standing in tbe community bas not been impaired by defendants’ conduct, and tbat be can still sbow a good character, does not exonerate tbe defendants from their wrongful purpose. Tbis might tend to sbow a smaller injury actually sustained, but a greater damage really intended. Tbe malice, ill-will, and spite of tbe defendants are not per se reduced or mitigated by tbe meager results accomplisbed. Compensatory damages are based upon injuries suffered by tbe plaintiff, while punitive damages are awarded upon wrongs intended by tbe defendants. However, tbe amount of punitive damages, while resting in tbe sound discretion of tbe jury, may not be excessively disproportionate to tbe circumstances of contumely and indignity present in each particular case. Gilreath v. Allen, 32 N. C., 67; Sloan v. Edwards, 61 Md., 100; Bernheimer v. Becker, 3 L. R. A. (N. S.), 221.

We have carefully examined tbe record, tbe defendants’ exceptions and assignments of error and find no sufficient reason for disturbing tbe results of tbe trial.

No error.  