Arnold v. Sharpe , 296 N.C. 533 ( 1979 )

251 S.E.2d 452 (1979) 296 N.C. 533

Betty B. ARNOLD
v.
Max W. SHARPE and Community Bank of Carolina.

No. 103.

Supreme Court of North Carolina.

February 5, 1979.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Michael K. Curtis, Greensboro, and Melinda Lawrence, Raleigh, for plaintiff-appellee.

Nichols, Caffrey, Hill, Evans & Murrelle by William L. Stocks and Robert D. Albergotti, Greensboro, for defendants-appellants.

BRANCH, Justice.

A motion for a directed verdict pursuant to Rule 50(a) presents the same question as did a motion for nonsuit prior to the adoption of the New Rules of Civil Procedure. The question is whether the evidence presented is sufficient to carry the case to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). In passing on this motion, the trial judge must consider the evidence in the light most favorable to the non-movant, and conflicts in the evidence together with inferences which may be drawn from it must be resolved in favor of the non-movant. The motion may be granted only if the evidence is insufficient to justify a verdict for the non-movant as a matter of law. Kelly v. Harvester Co., supra.

There are three classes of libel. They are: (1) publications obviously defamatory which are called libel per se; (2) publications susceptible of two interpretations one of which is defamatory and the other not; and (3) publications not obviously defamatory but when considered with innuendo, colloquium, and explanatory circumstances, become libelous, which are termed libels per quod. In an action upon the second class, it is for the jury to determine whether, under the circumstances, the publication was defamatory and was so understood by those who saw it. In publications which are libelous per quod, the innuendo and special damages must be alleged and proved. Flake v. News Co., 212 N.C. 780, 195 S.E. 55 (1938). Here we are not concerned with the second class since the language allegedly published was clear and unambiguous. Neither do we further consider libel per quod since plaintiff failed to prove special damages. We are, however, concerned with the question of whether there was a publication of a libel per se and, therefore, deem it necessary to further define that term.

Libel per se is the publication, expressed in writing or printing, or by signs and pictures which when considered alone without innuendo tends to subject one to ridicule, public hatred, contempt or disgrace, or tends to impeach one in his trade or profession. It is not essential that the words involve an imputation of crime, moral turpitude or immoral conduct. Kindley v. Privette, 241 N.C. 140, 84 S.E.2d 660 (1954); Flake v. News Co., supra; Broadway v. Cope, 208 N.C. 85, 179 S.E. 452 (1935). When a publication is libelous per se, a prima facie presumption of malice and a conclusive presumption of legal injury arise entitling the victim to recover at least nominal damages without proof of special damages. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971).

The only evidence of libel offered by plaintiff consisted of the words from a document which the witness Mary Jane Moore furtively observed while Mr. Sharpe was away from his desk. She testified:

... I stepped to the desk and I did not touch the document. I glanced down at it. To the best of my knowledge and recollection, it said something to the effect that she gossiped and she could not get along well with employees and that she was a troublemaker ....

The Court of Appeals in holding that this language constituted libel per se relied on several North Carolina cases. The most supportive cases are Pentuff v. Park, 194 N.C. 146, 138 S.E. 616 (1927), and Kindley v. Privette, supra.

In Kindley, the pastor of Southside Baptist Church of Concord, North Carolina, said in essence that plaintiff, a minister and member of that church, had been a disorderly member thereof in the sense that he was unwilling to cooperate in maintaining peace and the right spirit in the church but caused trouble amounting to a continuous upheaval and disruption of the peace and harmony of the church. This Court held this language to be libelous per se.

In Pentuff, a newspaper editorial was held to be libelous per se which said of plaintiff, an ordained minister, "`` "There has not, to our knowledge appeared in public within the memory of the present generation of North Carolinians, a more ignorant man ... or one less charitable towards men who might honestly disagree with him."'"

In instant case, the alleged libel was a short excerpt from a document of about a page and a half. The remainder of the document might well have reflected the writer's opinion that even with her failings, plaintiff was a skilled, efficient and loyal employee. Therefore, on this record, we cannot say that the evidence shows libel per se. However, there are more compelling reasons which lead us to reverse the decision of the Court of Appeals.

There is no basis for an action for libel unless there is a publication of the defamatory matter to a person or persons other than the defamed person. Taylor v. Jones Brothers Bakery, 234 N.C. 660, 68 S.E.2d 313 (1951). Under the facts of instant case, we agree with that portion of the Court of Appeals' decision which holds that there was no publication of libel to the witness Moore since there was no evidence that the witness knew that the handwritten memorandum which she observed was referring to plaintiff. In fact, the words alleged to be libelous might well have referred to other employees of the Bank.

In order for defamatory words to be actionable, they must refer to some ascertained or ascertainable person and that person must be the plaintiff. If the words used contain no reflection on any particular individual, no averment can make them defamatory. Nordlund v. Consolidated Electric Co-Op, 289 S.W.2d 93 (Mo.1956); 53 C.J.S. Libel and Slander § 11.

We next consider whether there is evidence to support a finding of a publication of libel when Mr. Sharpe forwarded a copy of the document to Mr. Black, the President of the Bank, and filed the original with the Bank's Personnel Department.

It is clear that Mr. Sharpe was acting under a qualified privilege in these instances since he was acting in a matter in which he had an interest as an employee of the Bank, and it was his duty to communicate such information to his superior and to make it a part of the Bank's personnel records. Under these circumstances, there could be no basis for an action in libel unless defendant Sharpe acted with actual malice. Stewart v. Check Corp., supra. However, we need not consider the question of malice or qualified privilege for the simple reason that there is nothing in this record to show that the memorandum communicated to Mr. Black and filed in the Personnel Department was libelous. The instrument allegedly containing the libel is not a part of the record. A typewritten document was shown to the witness Mary Jane Moore, but she never testified before the jury as to any similarity between the typed memorandum and the handwritten document which she viewed for a few seconds. Mr. Sharpe testified that the typewritten document was in substance the same as the final draft of the handwritten memorandum. However, he further testified that he modified, deleted and added to the original handwritten memorandum before it was reduced to typewritten form. The record does not disclose whether the witness Moore saw the original handwritten memorandum or the changed and modified final form of that instrument. For these reasons, we cannot know what appeared in the typewritten document. Thus, plaintiff has failed to show a publication of libel by the delivery of the typewritten document to Mr. Black or by filing the document with the Bank's Personnel Department.

We hold that the evidence in this case was insufficient to justify a verdict for the plaintiff as a matter of law. The trial judge, therefore, correctly granted defendants' motions for a directed verdict.

The decision of the Court of Appeals is

REVERSED.

BROCK, J., did not participate in the consideration or decision of this case.