Satterfield Ex Rel. Satterfield v. McLellan Stores Co.

~WiNBORNE, J. Does the complaint in this action state facts sufficient to constitute a cause of action, either for slander or for libel? The answer is “No.” 1. The allegation of slander is based upon this language used by the defendant Thomas : “When I say anything I mean it . . . you may go to the office and get your money for the day.” If it be conceded that these words are susceptible of the meaning attributed to them as alleged in the complaint, no actionable wrong was committed. “The use of mere abusive epithets by defendant, and by him spoken of, or to the plaintiff, is not actionable.” Idol v. Jones, 13 N. C., 162; Ringgold v. Land, 212 N. C., 369, 193 S. E., 267. 2. It is an elementary principle of law that there can be no libel without a publication of the defamatory matter. “To constitute a publi *585 cation, such as will give rise to a civil action, there must be a communication of the defamatory matter to some third person or persons.” McKeel v. Latham, 202 N. C., 318, 162 S. E., 747. In that case it was held that, without regard to the character of the language used, whether libelous or not, the sending of an uncovered post card through the United States mail addressed to plaintiff, is not a publication of the matter contained on the card. In Owen v. Ogilvie Pub. Co., 32 Appel. Div., 465, 53 N. Y. Sup., 1033, the factual situation is almost on all-fours with the present case. The headnote, epitomizing the decision, reads: “Where the manager of a corporation, in connection with its business, dictated a libelous letter to a stenographer in the corporation’s employment, who copied and mailed the same to plaintiff, the dictation, copying, and mailing constituted but a single act of the corporation and did not amount to a publication of the letter.” Hatch, J., speaking to the question, said: “Under such circumstances, we do not think the stenographer is to be regarded as a third person in the sense that either the dictation or the subsequent reading can be regarded as a publication by the corporation. . . . We do not deny that there can be publication of libel by a corporation by reading the libelous matter to a servant of the corporation or delivering it to be read. Where the duties devolving upon such servant are distinct and independent of the process by which the libel was produced, he might well stand in the attitude of a third person by whom a libel can be published. But such rule cannot be applied where the ants of the servant are so intimate as are disclosed in the present record, and the production is the joint act of both.” See, also, Prins v. Mortgage Co., ......Wash., ., 181 Pac., 680, 5 A. L. R., 451. In the Owen case, supra, the New York Court refers to and takes issue with the contrary view expressed by the Maryland Court in Gambrill v. Schooley, 93 Md., 48, 52 L. R. A., 87, 86 Am. St. Rep., 414, 48 Atl., 730. While there is in this State no decision directly in point, the reasoning in the New York case is consonant with our views. In the present case, upon the plaintiff requesting a separation notice as required by the Unemployment Compensation Commission, the acts of the manager in designating and indicating what should be inserted in that notice in answer to the question “Cause and separation;” and the act of the stenographer in filling in the answer to the question, were both parts of one act. Each had a duty to perform in connection with the production. Under such circumstances, the stenographer is not -a third person within the contemplation of law with respect to publication of a libelous matter. As in McKeel v. Latham, supra, a general allegation of publication concerning the plaintiff might have been sufficient, but the plaintiff has *586 elected to allege tbe facts and circumstances upon wbicb sbe claims tbe publication was made. These allegations negative publication. While it is alleged that defendant M. B. Thomas acted individually and in tbe capacity of agent of defendant, tbe McLellan Stores Company, tbe alleged facts surrounding the transaction show that be acted only in representative capacity and not as an individual. See Strayhorn v. Aycock, ante, 43, 200 S. E., 912. Since we have concluded there was no publication of tbe alleged defamatory matter, within tbe meaning of tbe rule relating to such publication, it is unnecessary to consider tbe questions as to privileged occasion or privileged communication, and as to whether or not tbe language used be libelous. Tbe judgment below is Reversed. DeviN, J., dissents.