Littlejohn v. Piedmont Publishing Co.

GRAHAM, J.

The first three paragraphs of defendant’s further answer and defense allege in somewhat narrative form the circumstances surrounding the publication of the article in question and also facts tending to show that the reporter and photographer who were responsible for the article were led, through conversations with William R. Fulk, to reasonably conclude that Fulk had divorced his wife on grounds of adultery.

Defendant contends that unless it pleads facts showing a lack of bad faith in publishing the article, it will be precluded from offering any evidence to rebut plaintiff’s allegations of malice and to protect itself from an award of punitive damages. Such is not the case. In this jurisdiction punitive damages may not be awarded on a showing of implied malice alone. To support such an award it must be shown by the plaintiff that the publication in question was prompted by actual malice, or that the defamation was recklessly or carelessly published. Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16; Bouligny, Inc., v. Steelworkers, 270 N.C. 160, 154 S.E. 2d 344; Roth v. News Co., 217 N.C. 13, 6 S.E. 2d 882 (and cases therein cited). It follows that the defendant may under a general denial of malice, and absent any affirmative pleading on its part, offer evidence to rebut a showing by the plaintiff that the publication was made maliciously. “It may be difficult to determine what facts may be shown under a general denial, but since the plaintiff is required to prove all the material facts’ of his case which are controverted, the defendant may show any facts which go to deny the existence of the cause of action, ...” 1 McIntosh, N.C. Practice & Procedure 2d, § 1236, p. 669.

While evidence for the purpose of rebutting a showing of malice may be admitted under a general denial, the law in this jurisdiction is that in an action for libel or slander a defendant must plead mitigating circumstances and affirmative defenses in order to offer evidence thereof to reduce the amount of compensatory damages. Harrell v. Goerch, 209 N.C. 741, 184 S.E. 489; Upchurch v. Robertson, 127 N.C. 127, 37 S.E. 157; Knott v. Burwell, 96 N.C. 272, 2 S.E. 588; Smith v. Smith, 30 N.C. 29. The right to do so is expressly given by G.S. 1-158 which states in part as follows:

“The defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he proves the justification or not, he may give in evidence the mitigating circumstances.”

The result is that without proper allegations of an affirmative defense or mitigating circumstances, a defendant may offer evidence tending to show good faith, but only for the purpose of negating malice, and not at all when malice has not been pleaded or proved by the plaintiff. Such evidence, without proper affirmative allegation, may not be considered on the issue of compensatory damages.

It is obvious that the facts pleaded in the first three paragraphs of defendant’s further answer, if proved, would tend to mitigate general damages as well as rebut any showing of malice. Defendant is entitled to plead such facts for this purpose. In fact it is necessary that it do so in order to present evidence in mitigation. We therefore conclude that the allegations stricken from the first three paragraphs were proper and should not have been stricken.

Plaintiff contends, however, that her motion was properly ■allowed in that the pleadings stricken were irrelevant, redundant and evidentiary. It is true that such matter may be stricken from a pleading on motion of the person aggrieved thereby. G.S. 1-153; Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Bank v. Easton, 3 N.C. App. 414, 165 S.E. 2d 252. Here, plaintiff did not direct her motion to any specific allegation claimed by her to be irrelevant, redundant or evidentiary. Therefore, if the paragraphs involved contained any proper allegations they should not have been stricken in their entirety. Johnson v. Petree, 4 N.C. App. 20, 165 S.E. 2d 757. The allegations are certainly relevant and are in no sense redundant. While they may appear somewhat evidentiary, we fail to see how the circumstances surrounding the publication of the article could otherwise be pleaded. The nature of such mitigating facts requires that they be pleaded in greater detail than is often necessary with respect to other types of affirmative defenses.

Allegations ordered stricken from paragraph 4 of the further answer allege that the article in question did not contain the new married name of plaintiff and any damage the plaintiff has suffered, largely, if not entirely, resulted from the institution of this suit and not from the publication of the article. The article has been pleaded in its entirety by the plaintiff and will be before the jury. It is unnecessary to call attention in the answer to what the article does or does not contain and to argue inferences to be drawn therefrom. Such arguments will undoubtedly be available to the defendant at the proper time and no prejudice will result from having this matter stricken from the answer.

■ That portion of the court’s order striking allegations from paragraphs 1, 2 and 3 of defendant’s further answer is reversed. That portion striking portions of paragraph 4 is affirmed.

Reversed in part and affirmed in part.

Campbell and PARKER, JJ., concur.