Roth v. Greensboro News Co.

197 S.E. 569, 214 N.C. 23, 1938 N.C. LEXIS 251

• Court: Supreme Court of North Carolina
• Decided: June 15, 1938
• Status: Published

Opinion

ScheNCK, J.

Tbis is an action to recover both actual and 'punitive damages for libel, instituted under tbe provisions of chapter 48 of tbe Consolidated Statutes. Tbe defendant demurs to tbe complaint on tbe ground tbat it fails to allege facts sufficient to constitute a cause of action “in tbat it is not therein alleged tbat at least five days before tbe institution of tbis action for tbe publication in a newspaper owned and published by tbe defendant of an alleged libel plaintiff served notice, in writing, on defendant specifying tbe article and tbe statements therein which be alleges to be false and defamatory.”

Tbe complaint alleges tbat on 11 September, 1937, tbe plaintiff “wrote a letter to tbe defendant and made demand tbat a full and fair correction, apology and retraction ... be made” of tbe libelous article published on 1 September, 1937, and “tbat more than twenty days have elapsed since tbe defendant received said letter,” and tbat defendant has failed and refused to publish any apology, correction or retraction. Tbe letter alleged to have been written by plaintiff and received by tbe defendant is set forth in tbe complaint and fully specifies tbe article and statements therein which tbe plaintiff alleges to be false and defamatory.

It is tbe contention of tbe defendant tbat tbe allegation of tbe plaintiff's having written a letter, and its having been received by tbe defendant, is not an allegation of tbe plaintiff’s having served notice in writing on tbe defendant as required by 0. S., 2429, which reads: “Before any action, either civil or criminal, is brought for tbe publication, in a newspaper or periodical, of a libel, tbe plaintiff or prosecutor shall at least five days before instituting such action serve notice in writing on the defendant, specifying the article and the statements therein which he alleges to be false and defamatory”; that the notice is governed by O. S., 914, which provides that “All notices must be in writing, and notices and other papers may be served on the party or his attorney personally, where not otherwise provided in this chapter”; and that since there is no provision “otherwise” for the service of the notice required by 0. S., 2429, it must be personally served, and the-writing and receipt of a letter is not a compliance with the statute.

With the contention of the defendant we cannot concur. 0. S., 914, upon which defendant relies, forms a part of the chapter entitled “Civil Procedure,” and it pertains only to notices in judicial proceedings after suit has been instituted. 0. S., 2429, and 0. S., 914, are separate and distinct statutes and have no relation one to the other. The provision for service of notice in the former refers to an act to be performed as a condition precedent to the institution of the action, whereas the provision as to service of notices in the latter refers to acts to be performed after an action is instituted.

In referring to 0. S., 2429, it is said: “The giving of such notice is required, only for the purpose of furnishing the defendant opportunity to publish a retraction. . . .” Osborn v. Leach, 135 N. C., 628. A letter written by plaintiff and received by defendant, in which a demand is made for a retraction and apology for a clearly specified article, in which the alleged false and defamatory statements are plainly indicated, fully accomplished the purpose of furnishing the defendant the opportunity which the statute provides it should have.

The judgment of the Superior Court is

Affirmed.