Newberry v. . Willis

142 S.E. 10, 195 N.C. 302, 1928 N.C. LEXIS 70

• Court: Supreme Court of North Carolina
• Decided: March 14, 1928
• Status: Published

Opinion

Stacy, C. J.

The defendant stressfully contends that, as a matter of law, the occasion in question was a qualifiedly privileged one and that it was error to submit the third issue to the jury. Gattis v. Kilgo, 128 N. C., 402, 38 S. E., 931, S. c., 140 N. C., 106, 52 S. E., 249.

Non constat the words spoken were not true, and the jury has found, under the court’s charge, that they were uttered maliciously. The third issue, therefore, may be disregarded without disturbing the judgment. Ferrell v. Siegle, ante, 102; Elmore v. R. R., 189 N. C., 658, 127 S. E., 710.

Speaking to the question in Byrd v. Hudson, 113 N. C., 203, 18 S. E., 209, Clark, J., delivering the opinion of the Court, said: “In Ramsey v. Cheek, 109 N. C., 270, the law of slander and libel is thus summarized: (1) When the words are actionable per se, unless the matter is privileged, the law presumes malice, and the burden is on the defendant to show that the charge is true. (2) If it is a case of absolute privilege, no action can be maintained, even though it could be shown that the charge was both false and malicious. (3) In a case of qualified privilege, the burden is on the plaintiff to prove both the falsity of the charge and that it was made with express malice. Or to put it more succinctly, if the words are actionable per se in unprivileged’ slander and libel, falsity and malice are prima facie presumed. If absolutely privileged,’ falsity and malice are irrebuttably negatived, and if it is a case of 'qualified privilege,’ falsity and malice must be proven.”

No reversible error having been made to appear on the record, the verdict and judgment will be upheld.

No error.