Davis Ex Rel. Davis v. Askin's Retail Stores, Inc.

DeviN, J. The sufficiency of the complaint is challenged by the demurrer on two grounds: (1) That the writing complained of is not libelous per se and contains no averment of special damage, and (2) that the complaint shows there was no publication of the alleged libel by the defendants. 1. The distinction between oral and written defamation is well recognized. To determine whether the particular words used are actionable per se, it is necessary to apply a different rule in case of libel from that applicable to slander. In Simmons v. Morse, 51 N. C., 7, it was said: “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. . . . 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.” 36 C. J., 1152; Brown v. Lumber Co., 167 N. C., 9; Hall v. Hall, 179 N. C., 571; Alexander v. Vann, 180 N. C., 187; Hedgepeth v. Coleman, 183 N. C., 309; Pentuff v. Park, 194 N. C., 146. In Paul v. Auction Co., 181 N. C., 1, Hoke, J., uses this language: “It is fully recognized that in order to constitute a libel it is not necessary that the publication should impute the commission of crime, infamous or otherwise, but the charge is established when a false publication is made, holding one up to public hatred, obloquy, contempt, or ridicule.” In Pentuff v. Park, supra, Clarkson, J., quotes with approval from Newell on Slander and Libel, as follows: “Everything printed or written which reflects on the character of another, and is published *554 without lawful justification or excuse, is a libel, whatever the intention may have been. . . . The words need not necessarily impute disgraceful conduct to the plaintiff; it is sufficient if they render him contemptible or ridiculous.” “Defamatory words, when spoken, are ordinarily not actionable per se unless they impute a crime; but written or printed words are actionable when they subject a person to disgrace, ridicule, odium, or contempt in the estimation of friends and acquaintances, or the public.” 17 R. C. L., 263; Foster-Milburn v. Chinn, 134 Ky., 424. The written words complained of charged the plaintiff in part as follows: “By removing property which does not belong to you, you have violated the laws of this city and State, and by so doing you have made yourself liable to prosecution. This law was passed for the protection of merchants against people who willfully convert to their own use merchandise sold to them under lease. . . . Unless we hear from you within 3 days we will have to turn the whole matter over to the proper authorities for whatever action is prescribed by the law.” In accord with the pertinent principles of the law of libel as set forth in the adjudicated cases and stated by text-writers, this written language must be held libelous and actionable without averment of special damages. 2. Does the complaint sufficiently allege that the defendants were responsible for the publication of the libelous matter complained of? Under the rule stated by Adams, J., speaking for the Court in Hedgepeth v. Coleman, 183 N. C., 309, this question must be answered in the affirmative. In the Hedgepeth case, supra, the facts were similar to those in the case at bar. It was there said: “In the letter referred to there is a threat of prosecution. When it was received, the plaintiff was between fourteen and fifteen years of age, and his youth was known to the defendant. With the knowledge of the plaintiff’s immaturity, of the character of the accusation and menace contained in the letter, of the probable emotion of fear, and the impelling desire for advice on the part of the plaintiff, the defendant must have foreseen the plaintiff’s necessary exposure of the letter as the natural and probable result of the libel.” The facts alleged in the complaint are sufficient to constitute a cause of action, and the demurrer was properly overruled. Affirmed.