Clement v. Koch , 259 N.C. 122 ( 1963 )

130 S.E.2d 65 (1963) 259 N.C. 122

Robert F. CLEMENT
v.
Frances Geneva Hart KOCH.

No. 99.

Supreme Court of North Carolina.

March 20, 1963.

Don C. Young, Asheville, for plaintiff-appellant.

Bruce J. Brown, Asheville, for defendant-appellee.

BOBBITT, Justice.

The only reasonable inference to be drawn from plaintiff's allegations is that Louis Cox was the author of the writing and that plaintiff's cause of action is for the publication or republication thereof. 33 Am.Jur., Libel and Slander § 95; 53 C.J.S. Libel and Slander § 86; Restatement, Torts, Vol. III, § 578; Johnston v. Lance, 29 N.C. 448; Hamilton v. Nance, 159 N.C. 56, 74 S.E. 627; Lewis v. Carr, 178 N.C. 578, 101 S.E. 97.

Notwithstanding the writing refers to "Robert F. Clemmons" rather than "Robert F. Clement," this difference in spelling is insufficient to impair plaintiff's allegation that the accusatory statements were written of and concerning plaintiff and that plaintiff suffered injury and damage on account of the publication thereof by defendant. The names are so nearly alike as to bring them within the rule of idem sonans. State v. Sawyer, 233 N.C. 76, 78, 62 S.E.2d 515, and cases cited.

The accusatory statements in said writing, if false, are libelous. If they do not charge the crime of larceny, they certainly tend to subject plaintiff to disgrace, ridicule, odium or contempt. Simmons v. Morse, 51 N.C. 6; Hedgepeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R. 232; Davis v. Askin's Retail Stores, Inc., 211 N.C. 551, 191 S.E. 33; Kindley v. Privette, 241 N.C. 140, 84 S.E.2d 660.

Notwithstanding defendant's assertion to the contrary, it does not appear upon the face of the complaint that defendant "is not a proper or necessary party defendant." She, the sole defendant, is sued "in an individual capacity." It does not appear upon the face of the complaint that defendant is related to the matters alleged therein in any capacity other than as an individual.

Notwithstanding defendant's assertion to the contrary, it does not appear upon the face of the complaint that "the matters alleged to have been uttered and published by the defendant occurred in a judicial proceeding and are privileged." Plaintiff's allegations are silent as to the nature of the writing and as to why and under what circumstances defendant caused it to be recorded.

The conclusion reached is that the grounds of objection to the complaint asserted by defendant are without merit and that the court should have overruled the demurrer. Hence, the judgment sustaining the demurrer and dismissing the action is reversed.

However, it should be stated that, in our view, the complaint does no more than meet minimum requirements. Gillispie v. Goodyear Service Stores, 258 N.C. 487, 128 S.E.2d 762, and cases cited. It would seem appropriate for defendant to move in the superior court that plaintiff be required to make his complaint more definite and certain to the end that defendant and the court may be advised of the precise nature of the cause of action on which plaintiff seeks to recover. G.S. 1-153.

Reversed.