Alley v. . Long

183 S.E. 294, 209 N.C. 245, 1936 N.C. LEXIS 437

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Stacy, C. J.

The theory of the nonsuit as to the Tea Company is, that there was no conscious publication of the alleged slanderous remarks on the part of its general manager and codefendant, Mr. Long. This, we think, was a question for the jury under the facts in evidence. Hedgepeth v. Coleman, 183 N. C., 309, 111 S. E., 517, 24 A. L. R., 232; McNichol v. Grandy, 81 A. L. R., 103.

According to the plaintiff’s testimony, “Mr. J. E. Collins was present, while the conversation was going on”; and Mr. Collins testified that he could hear what was said. True, it is in evidence that Collins was standing at the door and that Long was sitting with his hack to the door and could not see him. Non constat that he was not conscious of his presence. McKeel v. Latham, 202 N. C., 318, 162 S. E., 747.

But the case does not stop here. Even if Collins did overhear the conversation to the knowledge of Long, still the Tea Company contends there was no publication, such as the law requires in defamation, because Collins was one of the drivers of the Transport Company and included in the charge, “all the drivers you have over there are crooks.” Bull v. Collins, 54 S. W. (2d) (Tex.), 870; Harbison v. C. R. I. & P. Ry. Co., 327 Mo., 440, 37 S. W. (2d), 609, 79 A. L. R., 1.

The language of the declarant, it will be noted, does not charge Collins directly with participation in the looting of the Tea Company’s merchandise — only that the drivers were crooked — while full responsibility is placed upon the plaintiff. It would seem that the principle contended for is not available as a shield in the circumstances presently presented. Marble v. Chapin, 132 Mass., 225.

The Tea Company also contends that Long was not acting within the scope of his employment in taking the matter up with the plaintiff. Sawyer v. R. R., 142 N. C., 1, 54 S. E., 793. This was a question for the jury under the evidence. Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446. Long was “in charge of the Tea Company’s business with regard to losses,” and he threatened to ask for plaintiff’s removal.

It is observed there is no plea of privilege, justification, or mitigating circumstances. C. S., 542; Hartsfield v. Hines, 200 N. C., 356, 157 S. E., 16; Gudger v. Penland, 108 N. C., 593, 13 S. E., 168; McIntosh Practice and Procedure, 365; 17 R. C. L., 401.

Eeversed.