Taylor v. Jones Bros. Bakery, Inc.

68 S.E.2d 313 (1951) 234 N.C. 660

TAYLOR
v.
JONES BROS. BAKERY, Inc.

No. 669.

Supreme Court of North Carolina.

December 12, 1951.

H. L. Koontz, Greensboro, J. Elmer Long and Clarence Ross, Graham, for plaintiff, appellee.

Hines & Boren and Welch Jordan, Greensboro, for defendant, appellant.

DENNY, Justice.

The defendant's exception to the failure of the court to strike out that portion of paragraph eight of the plaintiff's complaint, alleging that the plaintiff was discharged by Biggerstaff wrongfully and without justification or excuse, is without merit.

The exception, however, to the refusal of the court to strike out paragraph nine of the complaint in its entirety, presents a more serious question. There is no allegation in the complaint to the effect that Paul Jones, the Vice President of the defendant corporation, ever communicated the statement made by him to the plaintiff to any other person, nor does the plaintiff allege in his complaint that any slanderous statement with respect to the conduct of the plaintiff was ever communicated to a third person by any one, save and except by O. W. Biggerstaff, a route supervisor of the defendant.

Therefore, we must consider whether the statement made by the officer of the defendant corporation to the plaintiff upon the plaintiff's inquiry as to why he had been discharged, constituted a publication sufficient to support an action for slander. The answer must be in the negative.

It is generally held that the publication, of a libel or slander, invited or procured by the plaintiff, or by a person acting for him, is not sufficient to support an action for defamation. 33 Am.Jur., Libel and Slander, section 93, p. 105; 53 C.J.S., Libel and Slander, § 80, p. 129; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732; Taylor v. Mc-Daniels, 139 Okl. 262, 281 P. 967, 66 A.L.R. 1246; McDaniel v. Crescent Motors, 249 Ala. 330, 31 So. 2d 343, 172 A.L.R. 204; Lovejoy v. Mutual Broadcasting Co., Tex. Civ.App., 220 S.W.2d 308; Kaplan v. Edmondson, 68 Ga.App. 151, 22 S.E.2d 343; Tucker v. Pure Oil Company of Carolinas, 191 S.C. 60, 3 S.E.2d 547. While it is not necessary that the defamatory words be communicated to the public generally, it is necessary that they be communicated to some person or persons other than the person defamed. Hedgepeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R. 232; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; 53 C.J.S., Libel and Slander, § 78, p. 127; 33 Am.Jur., Libel and Slander, section 96, p. 107.

An examination of plaintiff's complaint discloses that all his allegations with respect to his right to recover compensatory as well as punitive damages, are bottomed on the statements made by Biggerstaff to the various customers of the defendant corporation. He alleges no damages resulting from the statement made to him by the Vice President of the defendant corporation in response to his own inquiry as to the reason for his discharge. Certainly such a statement, unless made to a third person, would not support an action for slander. Moreover, it is generally held that where slanderous or libelous statements are induced for the purpose of bringing suit thereon, recovery will not be permitted. This is upon the theory that a plaintiff will not be permitted to "assist in building up a cause of action for the purpose of gathering the fruitage to himself." Richardson v. Gunby, 88 Kan. 47, 127 P. 533, 536, 42 L.R.A.,N.S., 520. See 172 A.L.R. Annotation 214. Furthermore, there is no allegation in plaintiff's complaint to the effect that the Vice President of the defendant corporation authorized the defendant Biggerstaff, or any one else, to publish the statement made by him to the plaintiff. 53 C.J.S., Libel and Slander, § 150(a), p. 233. Consequently, we think the defendant is entitled to have all of the allegations contained in paragraph nine of the plaintiff's complaint stricken out, and it is so ordered.

The exception to the failure of the court to grant the defendant's motion to strike from the plaintiff's complaint the allegation with respect to the reputed wealth of the defendant, will not be upheld.

In an action where punitive damages may be awarded, evidence of the financial condition of the defendant, or of its reputed wealth, is admissible in behalf of the plaintiff. Roth v. Greensboro News Co., 217 N.C. 13, 6 S.E.2d 882; Bryant v. Reedy, 214 N.C. 748, 200 S.E. 896; Baker v. Winslow, 184 N.C. 1, 113 S.E. 570; Carmichael v. Southern Bell Telephone & Telegraph Co., 162 N.C. 333, 78 S.E. 507; Arthur v. Henry, 157 N.C. 393, 73 S.E. 206; Tucker v. Winders, 130 N.C. 147, 41 S.E. 8; Reeves v. Winn, 97 N.C. 246, 1 S.E. 448; Adcock v. Marsh, 30 N.C. 360.

The judgment of the court below will be modified as directed herein.

Modified and affirmed.