Harrell v. . Goerch

184 S.E. 489, 209 N.C. 741, 1936 N.C. LEXIS 337

Opinion

Stacy, O. J.

As the article was shown to be libelous, Brown v. Lumber Co., 167 N. C., 9, 82 S. E., 961, and the defendants have not pleaded privilege, justification, or mitigating circumstances, O. S., 542, it was error to withhold the case from the jury. Alley v. Long, ante, 245; Hartsfield v. Hines, 200 N. C., 356, 157 S. E., 16; Gudger v. Penland, 108 N. C., 593, 13 S. E., 168; Broadway v. Cope, 208 N. C., 85; McIntosh, Practice and Procedure, 365; 17 R. G. L., 401.

Nor can the nonsuit be sustained on the theory the action was not brought within the statutory period of one year. C. S., 443 (3). It is admitted in the answer that the publication appeared in the issue of the defendant magazine “on 14 October, 1933.” This action was commenced by the issuance of summons on 13 October, 1934. Morrison v. Lewis, 197 N. C., 79, 147 S. E., 729; McIntosh, supra, 293, et seq.

Whether the article should he regarded as libelous per se or only per quod is not material on the motion to nonsuit, as the evidence was sufficient to carry the case to the jury in either view, considering the state of the pleadings. Oates v. Trust Co., 205 N. C., 14, 169 S. E., 869; Pentuff v. Park, 194 N. C., 146, 138 S. E., 616.

On motion to nonsuit, the evidence is to be taken in its most favorable light for the plaintiff. Nash v. Royster, 189 N. C., 408, 127 S. E., 356.

Reversed.

Devin, J., took no part in the consideration or decision of this case.