Averitt v. Rozier , 119 N.C. App. 216 ( 1995 )

458 S.E.2d 26 (1995) 119 N.C. App. 216

James D. AVERITT, Plaintiff,
v.
Al ROZIER, d/b/a, Al's Truck Service, and Freddie Johnson, Sr., Defendants.

No. 9412SC608.

Court of Appeals of North Carolina.

June 6, 1995.

Downing & David by Edward J. David, Fayetteville, for plaintiff-appellant.

Bobby G. Deaver, Fayetteville, for defendant-appellee Al Rozier.

Yarborough & Hancox by Garris Neil Yarborough, Fayetteville, for defendant-appellee Freddie Johnson, Sr.

JOHN C. MARTIN, Judge.

Plaintiff contends that genuine issues of material fact exist as to his claim against both defendants, rendering summary judgment inappropriate. We agree there are genuine factual issues with respect to plaintiff's claim against defendant Rozier and we reverse summary judgment granted in his favor. However, we conclude that no genuine issues of material fact exist as to defendant Johnson and that he is entitled to judgment as a matter of law. Accordingly, we affirm summary judgment dismissing plaintiff's claim against defendant Johnson.

Summary judgment is appropriate where the pleadings and affidavits show there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56. In ruling on the motion, the court must consider the evidence in the light most favorable to the nonmovant, who is entitled to the benefit of all favorable inferences which may reasonably be drawn from the facts proffered. New South Insurance Co. v. Kidd, 114 N.C.App. 749, 443 S.E.2d 85, disc. review denied, 336 N.C. 782, 447 S.E.2d 427 (1994).

Spoken communication to a third person of false and defamatory words which "tend to prejudice another in his reputation, office, trade, business, or means of livelihood" is actionable slander. Morrow v. Kings Department Stores, 57 N.C.App. 13, 20, 290 S.E.2d 732, 736, disc. review denied 306 N.C. 385, 294 S.E.2d 210 (1982). "Slander per se is an oral communication to a third person which amounts to (1) an accusation that the plaintiff committed a crime involving moral turpitude; (2) an allegation that impeaches the plaintiff in his trade, business, or profession; or (3) an imputation that the plaintiff has a loathsome disease." Phillips v. Winston-Salem/Forsyth County Bd. of Educ., 117 N.C.App. 274, 277, 450 S.E.2d 753, 756 (1994). When a false statement falling within one of these categories is spoken, a prima facie presumption of malice and a conclusive presumption of legal injury and damage arises; allegation and proof of special damages is not required. Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572 (1994).

Here, the evidence, when considered in the light most favorable to the plaintiff, establishes that both defendants made oral statements to third parties suggesting that plaintiff had kidnapped and murdered an investigator who had been employed by plaintiff's former wife. The statements were obviously false. Murder and kidnapping are, beyond any rational argument to the contrary, crimes involving moral turpitude. See State v. Mann, 317 N.C. 164, 170, 345 S.E.2d 365, 369 (1986) ("Moral turpitude involves an act of inherent baseness in the private, social, or public duties which one owes to his fellowmen or to society, or to his country, her institutions and her government.")

Nevertheless, statements which are otherwise defamatory may be protected by a qualified privilege.

A defamatory statement is qualifiedly privileged when made (1) in good faith, (2) on subject matter (a) in which the declarant has an interest or (b) in reference to which the declarant has a right or duty, (3) to a person having a corresponding interest, right, or duty, (4) on a privileged occasion, and (5) in a manner and under circumstances fairly warranted by the occasion and duty, right or interest.

Shillington v. K-Mart Corp., 102 N.C.App. 187, 194-95, 402 S.E.2d 155, 159 (1991). Where the occasion is privileged, there is a presumption that the defendant acted in good faith and the plaintiff has the burden of proving that the statement was made with actual malice. Id. "Actual malice may be proven by a showing that the defamatory statement was made with knowledge that it was false, with reckless disregard for the truth or with a high degree of awareness of its probable falsity." Id. at 195, 402 S.E.2d at 159. If the plaintiff cannot show actual malice, the qualified privilege becomes an absolute privilege, and there can be no recovery even though the statement was false. Id. "[A] ``privileged occasion' arises when for the public good and in the interests of society one is freed from liability that would otherwise be imposed on him by reason of the publication of defamatory matter." Troxler v. Charter Mandala Center, 89 N.C.App. 268, 272, 365 S.E.2d 665, 668, disc. review denied, 322 N.C. 838, 371 S.E.2d 284 (1988). (Citation omitted). Whether an occasion is privileged is a question of law, unless the circumstances of the publication are in dispute, in which case it is a mixed question of law and fact. Shuping v. Barber, 89 N.C.App. 242, 365 S.E.2d 712 (1988).

There is no genuine factual dispute as to the circumstances surrounding defendant Johnson's statements to Ms. Carter and the alleged victim with respect to the information which precipitated his investigation. The circumstances show that those statements were made by defendant Johnson in the course of a privileged occasion; certainly a police officer has an interest in undertaking an investigation into allegations of criminal conduct and in engaging in good faith communications with potential witnesses and alleged victims, who have a corresponding interest in receiving information relating thereto. Plaintiff failed to come forward with any evidence to rebut the presumption that defendant Johnson was acting in good faith in undertaking to investigate the information related to him by defendant Rozier or to show that defendant Johnson was acting with actual malice. Thus, we hold that statements made by defendant Johnson during the course of his investigation were protected by the qualified privilege, and summary judgment was appropriately entered in his favor.

We reach a different conclusion, however, with respect to defendant Rozier. He maintains that he too was acting in good faith and within the duty of a good citizen by reporting to a law enforcement officer information which had come to him concerning the possibility of serious criminal activity. The circumstances surrounding his communication of that information to defendant Johnson, however, are in dispute. While defendant Rozier stated, in his affidavit, that he merely passed on to defendant Johnson allegations made against plaintiff by Glenn Hair, Hair denied having made the statements to defendant Rozier, permitting the inference that Rozier was not acting in good faith and was acting with malice. Therefore, there exists a genuine issue of fact as to whether the defamatory statements were made on a privileged occasion so as to be protected by the qualified privilege, and summary judgment was inappropriate.

For the reasons stated, summary judgment in favor of defendant Johnson is affirmed, summary judgment in favor of defendant Rozier is reversed, and this cause is remanded to the Superior Court of Cumberland County for trial.

Affirmed in part, reversed in part, and remanded.

ARNOLD, C.J., and WYNN, J., concur.