Wall v. Blalock

95 S.E.2d 450 (1956) 245 N.C. 232

Porter G. WALL, Sr.
v.
J. H. BLALOCK.

No. 666.

Supreme Court of North Carolina.

December 12, 1956.

W. Reade Johnson, Winston-Salem, for plaintiff, appellant.

Folger & Folger, by Fred Folger, Jr., Mount Airy, for defendant, appellee.

HIGGINS, Justice.

This Court has seldom had before it for review the question whether words spoken by an attorney in the course of a trial render him liable in an action for slander. Two views are generally held. One is, the occasion gives the attorney a privilege absolute and unqualified. The other is, the privilege is absolute, provided the statements are material and pertinent. The former is the English rule. The latter is the rule supported by the weight of authority in the United States. Am.Jur., 33, sec. 179, p. 172; 53 C.J.S., Libel and Slander, § 104, p. 179.

Our Court has followed the prevailing American rule. In the case of Shelfer v. Gooding, 47 N.C. 175, this Court said: "To make the aid (of counsel) effective, great latitude must necessarily be allowed to counsel, not only in the examination and cross-examination of the witnesses, but in commenting on their testimony and their demeanor in giving it. They must be allowed to speak freely whatever is relevant and material to the cause without the fear of being harassed with slander suits and by attempts to prove that they were actuated by malicious motives in the discharge of their duty." In the recent case of Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 81 S.E.2d 146, 148, quoting from Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248, this Court said: "``The general rule is that a defamatory statement made in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice.'" In a subsequent paragraph of the opinion the Court recognizes the materiality and pertinency rule. The following cases are to like effect: Mitchell v. Bailey, 222 N.C. 757, 23 S.E.2d 829; Harshaw v. Harshaw, 220 N.C. 145, 16 S.E.2d 666; Baggett v. Grady, 154 N.C. 342, 70 S.E. 618; Ramsey v. Cheek, 109 N. C. 270, 13 S.E. 775; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168; Nisson v. Cramer, 104 N.C. 574, 10 S.E. 676.

In this case materiality and pertinency of the argument appear from the allegations of the complaint. The argument, therefore, was privileged. When the allegations affirmatively disclose that the plaintiff's supposed grievance is not actionable—a statement of a defective cause of action—it may be dismissed on demurrer. Scott v. Statesville Plywood & Veneer Co., supra.

The judgment of the Superior Court of Surry County is

Affirmed.

JOHNSON, J., not sitting.