Taylor v. Kinston Free Press Co. , 237 N.C. 551 ( 1953 )

75 S.E.2d 528 (1953) 237 N.C. 551

TAYLOR
v.
KINSTON FREE PRESS CO. Inc. et al.

No. 384.

Supreme Court of North Carolina.

April 15, 1953.

Jones, Reed & Griffin, Kinston, for defendant, Ralph L. Shell, appellant.

Whitaker & Jeffress, Kinston and Lassiter, Leager & Walker, Raleigh, for defendant, Kinston Free Press Company, Inc., appellee.

DEVIN, Chief Justice.

The only question presented by this appeal is the correctness of the decision of Judge Crisp in overruling the demurrer of defendant Shell to the cross-action of defendant Free Press Company. The demurrer was based upon the ground that there was no right to contribution as between these defendants growing out of the cause of action alleged in the complaint, and that no question of primary and secondary liability could be raised.

It is well settled that all who take part in the publication of a libel or who procure or command libelous matter to be published may be sued by the person defamed either jointly or severally. Odgers on Libel and Slander, pg. 171; Newell on Slander and Libel, pg. 237; 1 Cooley on Torts, pg. 273; 33 A.J. 186; Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931; Lewis v. Carr, 178 N.C. 578, 101 S.E. 97; Tucker v. Eatough, 186 N.C. 505, 120 S.E. 57; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183; Connelly v. State Co., 152 S.C. 1, 149 S.E. 266.

In Tucker v. Eatough, supra [186 N.C. 505, 120 S.E. 60], where an individual and an unincorporated labor union were sued for libel, it was held the labor union as such could not be sued, but Chief Justice Clark observed: "The defendant Eatough, is liable for any libel that he may be proven to have issued, and any individuals or corporations who aided and abetted him in issuing a libel can be made parties defendant".

In our case the plaintiff has sued only the Publishing Company. But the Publishing Company has by proper procedure sought to avail itself of the provisions of G.S. & 1-240, and to bring into the action the person who prepared the article complained of and procured its publication for the purpose of enforcing contribution against him as joint tort feasor in the event the plaintiff should recover. The demurrer admits the facts pleaded but denies their sufficiency to entitle the defendant Free Press Company to this relief.

The intent and purpose of G.S. § 1-240 is to permit a defendant who has been sued in a tort action to bring into the action, for the purpose of enforcing contribution, every tort feasor against whom the plaintiff could have originally brought suit in the same action. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922; Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821.

That the publication of a libel causing injury to the person defamed is a civil wrong and is embraced within the category of torts may not be gainsaid, and it follows that all those who join in the publication of a false and malicious defamation in writing as composer and publisher must be regarded in law as joint tort feasors within the purview of the statute.

It follows that on the allegations in the cross-complaint of defendant Free Press Company the defendant Shell was properly made party defendant, and that the demurrer of defendant Shell on the ground that the cross-complaint was insufficient to support the contingent plea for contribution under the statute was properly overruled. We have examined the cases cited by appellant and none of them militate against the conclusion here reached.

This disposition of the appeal renders it unnecessary to determine at this stage of the action questions of primary and secondary liability between the defendants in case of recovery by the plaintiff.

The plaintiff Taylor was not a party to this appeal. The sufficiency of his complaint is not challenged on this record. It is not subject to demurrer ore tenus in this Court on this appeal.

The judgment overruling the demurrer of the defendant Shell is

Affirmed.