Gibby v. Murphy

325 S.E.2d 673 (1985)

Larry Warren GIBBY v. Jack MURPHY, Robert Anderson, and Orkin Exterminating Co., Inc.

No. 8427SC366.

Court of Appeals of North Carolina.

February 19, 1985.

*675 Lloyd T. Kelso, Gastonia, for plaintiff-appellee and cross-appellant.

Robert N. Burris, Charlotte, for defendants-appellants and cross-appellees.

ARNOLD, Judge.

Defendants' Appeal

The gravamen of the defendants' appeal is that the trial court erred by denying their motion for a directed verdict as to the issue of slander. They base their argument upon the contentions that there was insufficient evidence of publication of any slanderous statement, that there was insufficient evidence of damages. Defendants also contend the court erred by misstating the evidence in its summary to the jury.

Slander, oral defamatory utterances, may be actionable per se. Statements that are slanderous per se may form the basis of an action because in such cases malice and damages are presumed as a matter of law. Among statements which are slanderous per se are accusation of crimes or offenses involving moral turpitude, defamatory statements about a person with respect to his trade or profession, and imputation that a person has a loathsome disease. Penner v. Elliott, 225 N.C. 33, 33 *676 S.E.2d 124 (1945); Williams v. Freight Lines and Willard v. Freight Lines, 10 N.C.App. 384, 179 S.E.2d 319 (1971).

The plaintiff offered evidence which tended to show that defendant Orkin, by and through its agent defendant Anderson, falsely accused him of being charged with the crimes of embezzlement. This evidence is sufficient, if believed by a jury, to show slander per se. Therefore, the trial court properly denied the defendants' motion for a directed verdict. Since damages are presumed in slander per se the defendants' contentions that it was improper to allow an award of damages because of lack of evidence is also without merit.

Finally, as to defendants' argument that the trial court improperly summarized the evidence for the jury, we find no error. We have carefully reviewed the court's summarization and find it to be substantially correct, and in compliance with Rule 51 of the North Carolina Rules of Civil Procedure.

As to the defendants' appeal, we find no error in the trial court's judgment.

Plaintiff's Cross-Appeal

The questions presented by plaintiff's appeal are whether the trial court erred by directing a verdict against the plaintiff as to the issues of libel, and whether it erred by directing a verdict against the plaintiff on the issues of punitive damages as to both of his causes of action.

With regard to the issue of libel, the plaintiff offered evidence, which when taken as true and in the light most favorable to him, showed the following. An agent of Orkin took a letter, written by defendant Murphy, accusing Gibby of being guilty of the crimes of embezzlement of company funds and fraud and published it to Mrs. Stroup's accountant who in turn relayed it to her attorney. This letter tended to subject Gibby to ridicule, public hatred, contempt and disgrace. The allegations found in the 28 January 1982 letter were libel per se, if a jury found them to be false. See Arnold v. Sharpe, 296 N.C. 533, 251 S.E.2d 452 (1979). The question then becomes whether Orkin had a qualified privilege to publish the letter to Mrs. Stroup's accountant and attorney.

A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest. The essential elements thereof are of good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty.

Stewart v. Check Corp., 279 N.C. 278, 285, 182 S.E.2d 410, 415 (1971), quoting 50 Am. Jur.2d Libel and Slander § 195 (1970). The publication to Mrs. Stroup's accountant and attorney of the accusation that Gibby had on more than one occasion embezzled company funds and had defrauded Mrs. Stroup was not privileged, in its entirety, because it released to persons who were not proper parties accusations that Gibby had committed a crime involving moral turpitude. The trial court erred, therefore, in directing a verdict in the favor of Orkin. Plaintiff has failed, however, to offer any evidence of Jack Murphy's involvement in the publication of the libelous statements, thus, the court properly directed a verdict in his favor.

Finally, we must determine whether the court erred by directing a verdict against the plaintiff on his claims for punitive damages. To recover punitive damages a private figure must prove "actual malice" on the part of the defendants. Actual malice may be proven by showing that the defendants published the defamatory material with knowledge that it was false, with reckless disregard to the truth, *677 or with a high degree of awareness of its probable falsity. Cochran v. Piedmont Publishing Co., 62 N.C.App. 548, 302 S.E.2d 903, disc. rev. denied 309 N.C. 819, 310 S.E.2d 348 (1983), and cert. denied ___ U.S. ___, 105 S. Ct. 83, 83 L. Ed. 2d 30 (1984). Our examination of the record reveals no evidence from which the jury might have concluded that any of the allegedly defamatory statements were made with actual malice. The trial court properly directed a verdict against the plaintiff as to the issue of punitive damages.

The disposition of this appeal is as follows:

Defendants' appeal: No error.

Plaintiff's cross-appeal: Affirmed in part, reversed in part, and remanded for a new trial on the issue of whether Orkin Exterminating Company libeled the plaintiff.

WELLS and BECTON, JJ., concur.