Stewart v. Nation-Wide Check Corp.

Campbell, J.

Qualified privilege is an affirmative defense and must be pleaded in order that it might be raised. Bouligny, Inc. v. Steelworkers, 270 N.C. 160, 154 S.E. 2d 344 (1967). In view of the fact that the trial judge ruled, in his judgment dismissing the action, that the motion of the defendant to amend its pleadings to include the allegations of privilege was “unnecessary for a decision by the Court as to the merits of this controversy and that the motion of the defendant for a directed verdict should be allowed,” we must conclude that Judge Bryson did not dismiss this action on the basis that any statements made by Gormley, if slanderous, were qualifiedly privileged.

Proof of the publication of false words which are actionable per se precludes the entering of a directed verdict (or a nonsuit under the old civil practice). Gillis v. Tea Co., 223 N.C. 470, 27 S.E. 2d 283 (1943). Words uttered which tend to defame a person in his trade or business are actionable per se, and the issue is for the jury. Bell v. Simmons, 247 N.C. 488, 101 S.E. 2d 383 (1958).

We feel, consistently with the authority referred to above, that the words allegedly uttered by the agent of the defendant while he was acting within the scope of his instructions, Gillis v. Tea Co., supra, that is, to find Stewart and determine why he had not reported to his superiors, were actionable per se. As such, in the absence of privilege, the only remaining theory on which to sustain the action of the trial judge is a finding on his part that in law the words were true. Mr. I. A. McQueen testified:

“I answered the phone and he told me he was Mr. John Gormley with Nation-Wide Check Corporation and that it was urgent that he find Jack Stewart and that he had a man in Kinston who had receipts to prove that he had paid Jackie several thousand dollars that he was short. That it was urgent that he get ahold to him at once because he had thirty thousand dollars worth of negotiable funds with him and he didn’t know what amount he might have spent of that. He did not say as to how much it was that he was short. As to his saying to who he was short he did not. He said that it was a customer in Kinston. As to when he said to me that there was several thousand dollars short and did he say who was in the shortage, he did not. He said that Jackie had the money. The man in Kinston had receipts where he had paid Jackie the money. As to his saying what if anything had Jack done with the money, he did not say. . . .”

The words published to Mr. McQueen could not be true in view of the other testimony offered by the plaintiff. As such, we find no theory upon which to support the action of the trial court in dismissing the action and entering a directed verdict pursuant to Rule 50 of G.S. 1A-1.

Prior to the argument in this Court, the defendant again moved for permission to file an amendment to the answer setting forth the defense of privilege. Pursuant to Rule 20(c) of the Rules of Practice in this Court, we have allowed the motion. On the authority of Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16 (1931), and Bouligny, Inc. v. Steelworkers, supra, the communications of Gormley were qualifiedly privileged, and no malice has been shown. For this reason, the judgment of the trial court is

Affirmed.

Britt and Vaughn, JJ., concur.