It will be noted tbat plaintiff alleges two causes of action of slander against tbe defendant:
(1) Tbat defendant falsely and maliciously published of and concerning plaintiff “Tbat 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.”
(2) Tbat defendant falsely and maliciously published of and concerning plaintiff “Tbat 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.”
Tbe defendant denied tbe allegations of tbe complaint, and sets up tbe defense of privileged communication. If defendant’s 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.
C. 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.
From a careful examination of tbe authorities, we find tbat it is laid down in Estee’s Pleadings (4 ed.) see. 1717, as follows: “A 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.”
Tbe same principle is stated in Maxwell on Code Pleadings, p. 352 : “When 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.”
*667In Cracraft v. Cochran, 16 Iowa, p. 304, it was said:' “It 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 ‘in 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.’ 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.” 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.
Plaintiff in his brief says: “The 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.” 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.
But 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: “In 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 — for example, words spoken in legislative bodies, in debates, etc., in reports of military officers on military matters *668to 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.” Qualified Privilege, sec. 389:
“In 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:
“(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.
“(2) Statements made for the protection of private interests.
“(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.
“(4) Reports of the proceedings of courts of justice and legislative bodies.”
Pearson, J., in Brooks v. Jones, 33 N. C., p. 260, defines malice: “General malice is wickedness, a disposition to do wrong, a ‘black and diabolical heart, regardless of social duty and fatally bent on mischief.’ . . . Particular malice is ill-will, grudge, desire to be revenged on a particular person.” S. v. Long, 117 N. C., p. 799; S. v. Knotts, 168 N. C., p. 184.
The 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 — his viewpoint of Cobb’s attitude towards him, slight and trifling.
In Lewis v. Carr, 178 N. C., p. 580, it was said: “In 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.” Harrison v. Garrett, 132 N. C., p. 176; Riley v. Stone, 174 N. C., 588; 17 R. C. L., p. 322, par. 65.
*669Newell Slander and Libel (4tb ed.) part sec. 280, is as follows: “Tbe 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.”
■ 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’s 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 — no recovery could be bad.
Tbe conversation on which recovery can be bad is on tbe charge of taking cash fares — 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 — tbe second can.
As to tbe second cause of action, O. M. Starke, testified tbat C. M. Oobb, division superintendent of defendant, in tbe conversation “Told 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’; 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.”
*670The defendant in the argument said: “At 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.”
The court below, on this aspect, we think, in a clear and accurate charge laid down the rule of law: “The third issue is, did the defendant speak of and concerning the plaintiff the words alleged in the second cause of action — 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 ‘Yes’; if you do not so find, you should answer it No.’ 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 ‘Yes’; if you are not so satisfied, you would answer it No.’ The evidence of Starke is — 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 ‘Yes,’ if you find it was not used, you would answer the issue No.’ ”
Newell Slander and Libel (4 ed.) part of par. 267, says: “In 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? — 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.” 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; *671McCall v. Sustair, 157 N. C., 179; Cotton v. Fisheries Products Co., 177 N. C., 56; Vincent v. Pace, 178 N. C., 421.
Walker, J., in Beck v. Bank, 161 N. C., p. 206, says: “As 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, ‘as in eases of larceny’ (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.” Ivie v. King, 167 N. C., 174, rehearing denied 169 N. C., 261.
The charge made against the plaintiff and so understood by the jury was that of embezzlement or misappropriation of cash fares — a felony under C. S., 4268. This was actionable per se, and malice is presumed.
If C. M. Cobb’s (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.
In' 25 Cyc., p. 386, it is said: “That 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.” Newell Slander and Libel (4 ed.) sec. 394, in part: “A communication which goes beyond the occasion exceeds the privilege.” In some jurisdictions it has been held “that 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.” 25 Cyc., 387.
In the present ease, the excess is per se actionable, and malice is presumed. It may be under different facts and circumstances — different pleadings and issues, expressions in excess may be evidence of malice, but here malice is presumed from the per se actionable words.
*672In Ange v. Woodmen, 173 N. C., p. 35, Hoke, J., citing a wealth of authorities, says: “It 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.” Munick v. Durham, 181 N. C., p. 193.
In Cook v. R. R., 128 N. C., p. 336, it was said: “Acting within the general scope of his employment, means while on duty, and not that the servant was authorized to do such acts.” 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.
After 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.
C. S., 542, is as follows: “In 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.”
Defendant 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 *673of 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: “The statute (Rev., sec. 502) (now C. S., 542), permits a defendant in actions for libel or slander to allege ‘both 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.”
Newell 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.”
If, in a plea of justification — 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’s conduct — collusion with the ticket agent Starke to defraud the defendant — 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.
The final exception and assignment or error we cannot sustain, which is as follows: “For that the court declined to give the instructions prayed by defendant, ‘The 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.’ ”
The court below charged the jury as to punitive damages: “As 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 defend*674ant, and tbe damages are awarded to tbe plaintiff as a punishment to tbe defendant. Tbat is entirely in your discretion.”
We 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.
Tbe 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.
Tbe second cause of action was brought by plaintiff against tbe defendant for publication made by defendant’s agent of a charge or accusation against him of embezzlement or misappropriation of cash fares — which is a felony. Tbe jury found tbat tbe publication made was false, and tbe words are actionable per se — malice is presumed— 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.
Under 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 : “Tbe words of a talebearer are as wounds.” Material things are trifling in comparison with character — “A good name is rather to be chosen than great riches.” 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. ■ On tbe second cause of action, we can in law discover no error.
Error as to first cause of action.
No error as to second cause of action.
Stacy, C. J., dissents; Vabseb, J., not having beard tbis case, did not take part in tbe decision.