Woody v. CATAWBA VALLEY BROADCASTING COMPANY , 272 N.C. 459 ( 1968 )

158 S.E.2d 578 (1968) 272 N.C. 459

Fred Paul WOODY, Plaintiff,
v.
CATAWBA VALLEY BROADCASTING COMPANY, Defendant.

No. 365.

Supreme Court of North Carolina.

January 12, 1968.

James O. Cobb, William H. McNair, Charlotte, G. Hunter Warlick, Hickory, for plaintiff appellee.

Patrick, Harper & Dixon, by Bailey Patrick and Charles D. Dixon, Hickory, for defendant appellant.

HIGGINS, Justice.

The pleadings and the evidence in this case disclose the news broadcast here involved was first written and later read over the defendant's radio broadcasting station at 12:30 p. m. The broadcast recited the plaintiff was reportedly "arrested last night by A.T.T.U. agents in Mecklenburg County and charged with violation of the prohibition laws. Woody was allegedly picked up in a 1954 Chevrolet containing 140 gallons of illicit liquor." The defendant argues it was justified in broadcasting the news item by reason of the fact the officers in Charlotte had seized a 1958 Mercury automobile whose driver escaped and was not identified. The Mercury evidently carried a license tag which had been stolen from the plaintiff's automobile, the theft reported to the Motor Vehicles Department, and replacement issued months before May 11, 1966.

After the 12:30 publication, plaintiff's wife ascertained plaintiff was on a freight run to Pennsylvania. She so notified the defendant and requested the publication not be repeated. She was told by the agent in charge that if she would get in touch with the officers in Charlotte and have them make a correction, or repudiate the charge, it would be withdrawn from further broadcast, but in the absence of such correction, the broadcast would be repeated. Plaintiff's wife was unable to contact the officers and have them get in touch with the defendant. The defendant repeated the broadcast at 6:00 p. m. This second publication is the gist of the plaintiff's cause of action.

The news item involved plaintiff's arrest by federal authorities for the unlawful possession and transportation of 140 gallons of illicit liquor. 26 U.S.C.A. § 5205(a) (2) makes it unlawful to transport, possess, buy, sell, or transfer any distilled spirits until the container has affixed thereto a tax stamp showing the internal revenue tax has been paid. § 5605 provides for a fine not to exceed $10,000, or imprisonment for not more than five years, or both, for the offense. § 7302 provides for the forfeiture of the vehicle used in the transportation. U.S.C.A., Title 18, § 1 provides: "1. Offenses Classified. Notwithstanding any act of Congress to the contrary (1) Any offense punishable by death or imprisonment for a term exceeding one year is a felony."

A charge that one has been arrested for a crime is libelous, per se, if false. Lay v. Gazette Publishing Co., 209 N.C. 134, 183 S.E. 416. Words imputing a violation of the liquor laws are actionable per se. Lynch v. Lyons, 303 Mass. 116, 20 N.E.2d 953; 53 C.J.S. Libel and Slander § 96; Lancour v. H & G Ass'n, 111 Vt. 371, 17 A.2d 253, 132 A.L.R. 486; 33 Am.Jur., Libel and Slander, § 9. After notice that plaintiff was not involved, the responsibility of verifying the charge would seem to rest on the defendant—to make the verification before it repeated the broadcast.

The question here is whether plaintiff's evidence made out a case for the jury. At this state, we need not concern ourselves with the question whether the defendant answered plaintiff's demand for the publication of a correction, retraction and apology. These are matters of defense. The burden of establishing them rests on the defendant. They arise only if the plaintiff has made out his case for the jury. Roth v. Greensboro News Co., 217 N.C. 13, 21, 6 S.E.2d 882, 885.

The plaintiff's evidence was sufficient to require its submission to the jury on the issues raised by the pleadings. While punitive damages are not recoverable as a matter of right, sometimes they are justified as additional punishment for intentional acts which are wanton, wilful, and in reckless disregard of a plaintiff's rights. We do not weigh the evidence. We discuss it here only to the extent necessary for our decision on the questions of law and legal inference presented by the appeal. What the evidence proves or fails to prove is for the jury.

For the reasons assigned, the plaintiff's evidence made out a case for the jury. The judgment of involuntary nonsuit is

Reversed.