Kindley v. Privette

84 S.E.2d 660 (1954) 241 N.C. 140

E. J. KINDLEY
v.
H. A. PRIVETTE.

No. 388.

Supreme Court of North Carolina.

November 24, 1954.

C. M. Llewellyn, B. W. Blackwelder and M. B. Sherrin, Jr., Concord, for plaintiff, appellee.

R. Furman James, L. E. Barnhardt, Hartsell & Hartsell and William L. Mills, Jr., for defendant, appellant.

BOBBITT, Justice.

The demurrer tests the sufficiency of the complaint. The rules applicable in so testing the complaint have been often stated and are well settled. Pressly v. Walker, 238 N.C. 732, 78 S.E.2d 920, and cases cited. The complaint must be fatally defective. If any portion of it alleges facts sufficient to constitute a cause of action, the complaint will stand. Cummings v. Dunning, 210 N.C. 156, 185 S.E. 653. This explains, in part, why we have not undertaken to include all allegations of the complaint in the above statement of facts.

The complaint, apart from other allegations, alleges that defendant published and circulated a church bulletin, which, in explanation of the exclusion (or attempted exclusion) of plaintiff from the membership of the Southside Baptist Church, contained statements of and concerning plaintiff to the effect that plaintiff 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 disrupted the peace and harmony of the church and therefore was excluded therefrom. Do these allegations, considered in relation to allegations as to plaintiff's professional status, and the allegations as to their damaging effect upon his reputation and means of livelihood, and the allegations as to the embarrassment, humiliation and disgrace caused thereby, state a cause of action?

"The publication of any libel is actionable per se, that is irrespective of whether any special harm has been caused to the plaintiff's reputation or otherwise. Such a publication is itself an injury (see sec. 7) and therefore a sufficient ground for recovery of at least nominal damages." Restatement of the Law, Torts, sec. 569.

As stated in 33 Am.Jur., Libel and Slander, sec. 6: "Much that, when spoken, is not actionable without an averment of extrinsic acts or an allegation and proof of special damages is, when written or printed, actionable per se."

And as stated in 53 C.J.S., Libel and Slander, § 13: "As a general rule, except as changed by statute, words written or printed may be libelous and actionable per se, that is, actionable without any allegations of special damages, if they expose or tend to expose plaintiff to public hatred, contempt, ridicule, aversion, or disgrace, induce an evil opinion of him in the minds of right thinking persons, and deprive him of their friendly intercourse and society, regardless of whether they actually produce such results. As otherwise stated, words published are libelous if they discredit plaintiff in the minds of any considerable and respectable class in the community, taking into consideration the emotions, prejudices, and intolerance of mankind; and it has been held that it is not necessary that the published statements make all or even a majority of those who read them think any the less of the person defamed, but it is enough if a noticeable part of those who do read the statements are made to hate, despise, scorn, or be contemptuous of the person concerning whom the false statements are published."

The phrase "libelous per se," used extensively, has been criticized as inexact. Southern California Law Review, Vol. 17, p. 347 et seq. While this phrase appears in our decisions, the words are used in the sense of actionable per se. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55.

Words characterizing plaintiff as a trouble maker and as one who stirs up dissension and strife within the church are reasonably calculated and naturally tend to cause the Baptist brethren, clergy and laity alike, to cease to avail themselves of his professional services and to avoid and withdraw from further contacts and association with him. If a minister has such reputation, experience teaches that others, clergy and laity alike, are disposed to be shy and wary of him as a minister and otherwise. The words in the bulletin "Note," if the facts are as alleged, are defamatory and if spoken would be slanderous per se. A fortiori, they constitute a basis for an action for libel. Pentuff v. Park, 194 N.C. 146, 138 S.E. 616, 53 A.L.R. 626; 33 Am.Jur., Libel and Slander, sec. 75; 53 C.J.S., Libel and Slander, § 39.

In Simmons v. Morse, 51 N.C. 6, the trial court intimated an opinion that the paper (a letter) was not a libel per se; and thereupon plaintiff submitted to nonsuit and appealed. The letter, written by defendant, addressed to plaintiff, was read by defendant to another person, who was requested to carry it and did carry it to plaintiff. It contained these alleged defamatory statements: "You have been trying to defraud me a long time, and has done it all you had power to do for the last ten or twelve years." Battle, J., writing the opinion for the Court, says: "A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs, or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt or ridicule. See 2 Kent's Com., 16, and the cases there referred to. The distinction between written and verbal slander is so well known, that it is unnecessary to refer to it more particularly than to say, that, any written slander, though merely tending to render the party liable to disgrace, ridicule or contempt, is actionable, though it do not impute any definite infamous crime punishable in the temporal courts."

The distinction has been recognized in our later cases. Brown v. Elm City Lumber Co., 167 N.C. 9, 11, 82 S.E. 961, L.R.A. 1915E, 275; Pentuff v. Park, supra; Hall v. Hall, 179 N.C. 571, 103 S.E. 136; Paul v. National Auction Co., 181 N.C. 1, 105 S.E. 881; Flake v. Greensboro News Co., supra. And in Flake v. Greensboro News Co., supra [212 N.C. 780, 195 S.E. 60], it is stated by Barnhill, J. (now C.J.), that a publication is actionable per se, "if, when considered alone without innuendo: * * (3) it tends to subject one to ridicule, contempt, or disgrace; or (4) it tends to impeach one in his trade or profession", citing authorities. It seems clear that the bulletin published and circulated by defendant contains defamatory language within the scope of both (3) and (4). And, as for innuendo, it is alleged very plainly that the defamatory words so published by defendant referred to plaintiff and were so understood by persons reading the bulletin and held the plaintiff up as "a fomenter of trouble and discord."

As to defendant's contention that plaintiff fails to allege that he gave notice of the alleged defamatory statement and thereby failed to afford opportunity for retraction by defendant, in accordance with "London Libel Law," G.S. § 99-1 et seq., a sufficient answer is that, if applicable, these statutory provisions relate solely to punitive damages and so have no bearing upon the sufficiency of the facts alleged to constitute a cause of action. Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648; Paul v. National Auction Co., supra.

For the reason stated, the judgment overruling demurrer is affirmed.

Affirmed.