Matthews, Cremins, McLean, Inc. v. Nichter , 42 N.C. App. 184 ( 1979 )

256 S.E.2d 261 (1979) 42 N.C. App. 184

MATTHEWS, CREMINS, McLEAN, INC.
v.
Michael NICHTER, John Gaskell, and Media Communications, Inc.

No. 7826SC904.

Court of Appeals of North Carolina.

July 3, 1979.

DeLaney, Millette, DeArmon & McKnight by Samuel M. Millette, Charlotte, for plaintiff-appellant.

Harkey, Faggart, Coira & Fletcher by Francis M. Fletcher, Jr., and Philip D. Lambeth, Charlotte, Gerald Rubin, Springfield, N.J., for defendants-appellees.

VAUGHN, Judge.

Plaintiff presents only one argument on appeal. It contends that the court erred in granting defendants' motion for dismissal of the action for libel because plaintiff had presented sufficient evidence to submit the question of defamation to the jury.

Libel has been defined as a malicious publication, in writing, which tends to impeach the reputation of someone and expose him to public contempt. 50 Am.Jur.2d Libel and Slander § 3 (1970).

"``Libels may be divided into three classes: (1) Publications which are obviously defamatory and which are termed libels per se; (2) publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not, and (3) publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances. This type of libel is termed libel per quod.'" Robinson v. Insurance Co., 273 N.C. 391, 393-94, 159 S.E.2d 896, 899 (1968) (quoting Flake v. News Co., 212 N.C. 780, 195 S.E. 55 (1938).

Libel per se is actionable without proof of actual damages because malice and injury are presumed. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971); Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466 (1955). Defamatory statements about a businessman imputing conduct derogatory to his reputation are actionable per se if they are uttered about him in his business relationship and affect him in his particular occupation. Badame v. Lampke, supra.

Plaintiff introduced into evidence three allegedly defamatory letters: one sent to West Virginia, one to South Dakota, and one with the addressee obliterated. Copies of the letters were sent to television advertising representatives in New York. "Unless otherwise provided by statute, libelous matter sent through the mails is generally actionable either at the place of posting or at the place of receipt by the addressee, even in another state . . . ." Sizemore v. Maroney, 263 N.C. 14, 21, 138 S.E.2d 803, 807-808 (1964). The law of the state in which the tort occurs governs the case. Kornegay v. Oxendine, 21 N.C.App. 501, 204 S.E.2d 885 (1974). In New York, the general rule is that

"``[a] writing is defamatory that is, actionable without allegation or proof of special damage — if it tends . . . to induce an evil or unsavory opinion of [a person] in the minds of a substantial number in the community, even though it may impute no moral turpitude to him.. . . And to that listing of the defamatory should be added a writing which tends to disparage a person in the way of his office, profession or trade.'" (Citations omitted.) Book v. Severino, 51 A.D.2d 911, 380 N.Y.S.2d 692, 693-94 (1976). See Four Star Stage Lighting, Inc. v. Merrick, 56 A.D.2d 767, 392 N.Y. S.2d 297 (1977).

South Dakota follows this same rule. Williams v. Hobbs, 81 S.D. 79, 131 N.W.2d 85 (1964). In West Virginia, a corporation may sue for libel when a publication defames its business reputation. Coal Land Development Co. v. Chidester, 86 W.Va. 561, 103 S.E. 923 (1920). Thus, plaintiff would be entitled to sue in any of these jurisdictions for the libelous actions of defendants.

Taking the plaintiff's evidence in the light most favorable to plaintiff, we find that defendant Nichter admittedly sent the allegedly libelous letters to at least two television stations. One of plaintiff's employees testified that he received a copy of the letters from each station. This testimony indicates that the letters were read by third parties and, therefore, fulfills the publication element of the cause of action for libel. Taylor v. Bakery, 234 N.C. 660, 68 S.E.2d 313 (1951); 50 Am.Jur.2d Libel and Slander § 155 (1970). That these third parties may not be business relations of plaintiff's is inconsequential because the only requirement is that plaintiff's business reputation be defamed. We further find that the letters themselves are libelous per se because they tend to injure plaintiff's reputation in that they assert that plaintiff breaches its contracts and fails to pay its bills. These statements clearly tend to disparage plaintiff's integrity in its business dealings.

We, therefore, reverse the order of the trial court dismissing plaintiff's action for libel.

Reversed.

HEDRICK and ARNOLD, JJ., concur.