Greer v. Skyway Broadcasting Company , 256 N.C. 382 ( 1962 )

124 S.E.2d 98 (1962) 256 N.C. 382

Edward D. GREER
v.
SKYWAY BROADCASTING COMPANY, a corporation, and B. P. Justice.

No. 17.

Supreme Court of North Carolina.

February 28, 1962.

Parker, McGuire & Bailey, by J. M. Bailey, Jr., Asheville, for defendant, appellant.

R. Lee Whitmire, Hendersonville, for plaintiff, appellee.

PARKER, Justice.

Skyway assigns as error the overruling of its demurrer, and contends there is a clear and fatal misjoinder of parties and causes of action, for the reason that the complaint alleges four causes of action, which do not affect all the parties to the action. One, a cause of action against Justice as an individual for false arrest, false imprisonment, and malicious prosecution. Two, a cause of action against Justice as an individual for libel. Three, a cause of action against Skyway for libel. Four, a cause of action against both defendants for conspiracy to libel and slander plaintiff, though the allegations of conspiracy are vague and indefinite and not supported by any alleged factual basis.

Plaintiff contends a reading of the complaint, with the amendment thereto, reveals an alleged conspiracy entered into between the defendants to libel and slander plaintiff, and a libeling and slandering of plaintiff by both defendants pursuant to the conspiracy, and nothing more. That his allegations in respect to the taking out of the warrant, his arrest, and imprisonment are necessary to show how the libel and slander originated.

Has plaintiff alleged a cause of action against Justice individually for malicious prosecution, as contended by Skyway?

There is a sharp conflict of authority as to whether or not a law enforcement officer can be held liable for malicious prosecution. A number of Courts hold that the doctrine, which may aptly be termed the "doctrine of judicial immunity" is applicable to law enforcement officers. The rationale of these cases is public policy requires that law enforcement officers be exempted from civil liability for acts within the scope of their authority so that they may fearlessly administer their duties, since the efficient functioning of law enforcement machinery is dependent largely upon the investigation of crime and the accusation of offenders by such officers. Other Courts hold the "doctrine of judicial immunity" inapplicable to such officers. Annotation, 28 A.L.R. 2d 646; 34 Am.Jur., Malicious Prosecution, sec. 86.

In State on relation of Hedgepeth v. Swanson, Sheriff of Vance County, and The National Surety Company, 223 N.C. 442, 27 S.E.2d 122, the complaint alleged, inter alia, that:

"``The defendant, Swanson, then acting by virtue and under color of his office as Sheriff of Vance County, and inspired not by any regard for the public interest or welfare, but simply and solely out of hate, vengeance and malice toward this plaintiff, wilfully, wantonly, falsely and maliciously, contriving and intending to injure the plaintiff, and to cause plaintiff to be arrested', procured from a justice of the peace a search and seizure warrant, authorizing the defendant Swanson to search the premises of the plaintiff; and it is also alleged ``That the said defendant Swanson, at the same time he procured the search and seizure warrant * * * by means of a false and malicious affidavit as hereinbefore set forth, went before * * *, the Clerk of Recorder's Court of Vance County, and falsely, wantonly, and maliciously, and without reasonable or probable cause therefor, charged the plaintiff before the Clerk of the Recorder's Court, with violation of the liquor laws of the State by operating a whiskey still and manufacturing intoxicating liquor, and by means of a false and malicious affidavit caused said Clerk of Recorder's Court to make out a writ in due form of law for the arrest of plaintiff, and said defendant, Swanson, falsely, maliciously, and without probable cause caused plaintiff to be arrested on said charge, * * *' and that when the case came on for trial the ``Judge of the Recorder's Court directed that said prosecution and warrant be nol prossed. That a nol pros was thereupon entered in said cause and said prosecution was thereby ended and wholly determined, and this plaintiff was released from his bond and discharged from said Court'; that in swearing out the warrants aforesaid the defendant ``Swanson was actuated throughout, not by any regard for the public interest, but solely and exclusively by the hate, malice and spirit of revenge which he entertained toward the plaintiff'; and ``* * * in swearing out said warrants and procuring the searching of the plaintiff's premises, and the arrest and prosecution of plaintiff upon a criminal charge, professed to be acting, and was acting, under and by virtue and color of his office, as Sheriff of Vance County.'"

Each defendant filed a demurrer ore tenus to the complaint on the ground it did not state facts sufficient to constitute a cause of action. The demurrers were sustained, and plaintiff appealed. On appeal the judgment of the lower court was reversed. In its opinion the Court said:

"There is ample allegation of the fact that the defendant in procuring the search warrant for the plaintiff's premises and the warrant for his arrest upon a charge of violating the prohibition laws acted corruptly and with malice. True, the words ``corruptly' or ``corruption' are not used to describe the action of the defendant but the words ``falsely,' ``wantonly,' ``out of revenge' and ``without regard to the public interest' all imply corrupt action on the part of the defendant sheriff. And the words ``out of hate,' ``malicious' and similar expressions in the complaint are a clear allegation of malice. The complaint likewise alleges that the action of the defendant sheriff in procuring the search of the plaintiff's premises and arrest of his person was ``without probable cause'.

"The requirements for an action for malicious prosecution against a public officer to recover damages caused by the performance of discretionary acts by such officer in a corrupt and malicious manner having been alleged, the demurrer to the complaint filed by the sheriff was erroneously sustained * * *."

Paragraph 12 of the complaint alleges that Justice signed and published an affidavit that plaintiff was guilty of the crimes of rape and robbery, of his own knowledge, after the alleged victim had told him plaintiff was not the man who raped and robbed her. The complaint further alleges in paragraph 15 Justice swore out a warrant charging plaintiff of his own knowledge with the crimes of rape and robbery, and naming himself on the warrant as the only witness. Several days later Justice tore up this warrant, and swore out another warrant charging plaintiff on information and belief with the same crimes, and naming six or seven witnesses on the warrant, none of whom knew anything about it. Paragraph 15 of the complaint was stricken therefrom on Skyway's motion; Justice did not move that it be stricken. Paragraph 16 of the complaint alleges a failure of the prosecution of plaintiff for the crimes of rape and robbery. This paragraph was stricken from the complaint by Judge Campbell on Skyway's motion, but he denied Justice's motion to strike the same paragraph.

To make out a case of malicious prosecution the plaintiff must allege and prove that defendant instituted, or procured, or participated in a criminal proceeding against him maliciously, without probable cause, which ended in failure. Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; Dickerson v. Atlantic Refining Co., 201 N.C. 90, 159 S.E. 446; Wingate v. Causey, 196 N.C. 71, 144 S.E. 530. "It is not necessary to allege a want of probable cause in terms where there is a statement of facts necessarily showing it." 34 Am.Jur., Malicious Prosecution, sec. 116.

The complaint does not allege that Justice swore out the warrants against plaintiff without probable cause in terms. It may be, or it may not be, that Justice had probable cause to swear out the warrants here, even though the victim could not identify plaintiff as the perpetrator of the alleged crimes against her. However that may be, the complaint in our opinion does not contain a statement of facts necessarily showing want of probable cause. In the light of the complaint in the Swanson case, and the language of the Court in that case, the complaint here does not allege a cause of action against Justice individually for malicious prosecution.

It would seem from the language of the complaint that the warrants here were issued by a justice of the peace in Henderson County. There is nothing in the complaint to show that the warrants did not properly charge the crimes of rape and robbery against plaintiff, or that the justice of the peace issuing the warrants did not have jurisdiction as a committing magistrate for the offenses charged. If Justice did not have a warrant when he arrested plaintiff, there is no language in the complaint showing that he was not authorized to arrest him without a warrant under the provisions of G.S. § 15-41. It seems from the language of the complaint that plaintiff was carried to jail, and held there without bail until the hearing, by the magistrate's commitment.

The language of Ruffin, C. J., for the Court in Welch v. Scott, 27 N.C. 72, quoted with approval in Alexander v. Lindsey, 230 N.C. 663, 55 S.E.2d 470, is as follows: "When the warrant purports to be for a matter within the jurisdiction of the justice the ministerial officer is obliged to execute it, and of course must be justified by it. He cannot inquire upon what evidence the judicial officer proceeded, or whether he committed an error or irregularity in his decision." "Ordinarily an officer is protected in serving a warrant, for the arrest of an accused named therein even though the warrant is defective." Alexander v. Lindsey, supra.

In our opinion, a study of the complaint as a whole, with the amendment thereto, leads us to the conclusion that it does not allege a cause of action against Justice individually for false arrest and false imprisonment.

Libel can be committed by defamatory pictures. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; 33 Am.Jur., Libel and Slander, sec. 3. Libel, and it would seem slander, can be committed by defamatory words broadcast by radio, although it has been intimated that the distinctions between libel and slander are inapplicable to radio broadcasting. 33 Am.Jur., Libel and Slander, p. 39; Annotation 171 A.L.R., p. 780 et seq.; 53 C.J.S. Libel and Slander § 121, p. 200.

Any written or spoken words or pictures falsely imputing that a person is guilty of the crime of rape or robbery are actionable per se, because these crimes involve moral turpitude. Penner v. Elliott, 225 N.C. 33, 33 S.E.2d 124; 33 Am.Jur., Libel and Slander, sec. 33; 53 C.J.S., Libel and Slander § 63, p. 110, robbery, § 72, p. 121, rape.

"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." Taylor v. Kingston Free Press Co., 237 N.C. 551, 75 S.E.2d 528, where plenary authority is cited in support of this principle of law.

"However, several persons may be jointly liable for a slander if there exists a common agreement or conspiracy between them to injure plaintiff. Where the slanderous words are uttered by one person at the instigation or direction of another, there is but one slander, for which they are jointly liable, * * *" 53 C.J.S., Libel and Slander § 159, pp. 243-244. To the same effect, Rice v. McAdams, 149 N.C. 29, 62 S.E. 774. See also Annotation 34 A.L.R., pp. 346-7.

"Every pleader has or should have some definite theory which he seeks to develop in his pleading and upon which he expects the court to grant relief. This is generally determined by the allegations of fact and explained by the relief demanded." McIntosh, N.C. Practice and Procedure, 2nd Ed., Vol. 1, p. 556. The Court said in Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25: "In ascertaining whether a pleading upholds a theory, the court construes the allegations of the pleading with liberality in favor of the pleader with a view to presenting the case on its real merits." It is stated in 41 Am.Jur., Pleadings, sec. 70: "A pleading, like any other document, is to be construed as a whole."

A demurrer presents squarely for decision the sufficiency of such plea, because the demurrer, for the purpose, admits the truth of factual averments well stated, and such relevant inferences as may be deduced therefrom, but not legal inferences or conclusions of law asserted by the pleader. Troy Lumber Co. v. Hunt, 251 N.C. 624, 112 S.E.2d 132.

Accepting as true the allegations of fact stated in the complaint, with the amendment thereto, and explained by the relief demanded, and construing their allegations of fact as a whole and with liberality in favor of the pleader with a view to presenting the case on its merits, we are of opinion, and so hold, that it states one cause of action against both defendants for joint libel and slander, by reason of a common agreement or conspiracy existing between them to injure plaintiff. The demurrer of Skyway was properly overruled.

"The rules and principles governing the admissibility of evidence in criminal prosecutions generally are ordinarily applicable in prosecutions for defamation. * * * Acts and declarations of one of several conspirators alleged to have participated in a criminal libel may be shown, even though they were not made in the presence of the others, if the evidence suffices to make out a prima facie case of conspiracy." 33 Am. Jur., Libel and Slander, p. 305.

"When a conspiracy is established, everything said, done, or written by any one of the conspirators, in execution or furtherance of the common purpose, is deemed to have been said, done, or written by each and all of them, and may be proved against any or all." State v. Lea, 203 N.C. 13, 28, 164 S.E. 737, 745.

While the language of plaintiff's pleadings is prolix, the trial court properly refused to strike from the complaint on Skyway's motion the last sentence above quoted from paragraph 4, and the entire paragraphs 3, 5, 6, 7, 8, 9, 12, 18, and 19.

Judge Campbell's judgment and order from which Skyway alone appeals is

Affirmed.

WINBORNE, C. J., not sitting.