Tyer v. Leggett

99 S.E.2d 779 (1957)

246 N.C. 638

Lucille TYER v. Ashley G. LEGGETT.

No. 19.

Supreme Court of North Carolina.

September 25, 1957.

*781 LeRoy Scott, John A. Wilkinson, Washington, for appellant.

Junius D. Grimes, Jr., W. B. Carter, Washington, for appellee.

DENNY, Justice.

There is no appeal from the verdict and judgment in the first cause of action.

The plaintiff insists that her motion for judgment on the pleadings in the second cause of action should have been allowed. She contends the answer is evasive and that it is impossible to determine which allegations in the complaint are admitted and which are denied, and, as a consequence, she was entitled to judgment in the court below for want of an answer.

It appears from the record that before the introduction of any evidence in the trial below, the plaintiff moved to strike the defendant's answer as to the second cause of action and for judgment on the pleadings. The motion was overruled and an exception noted. However, no exception to the failure to strike has been preserved. The assignment of error based on the ruling is directed only to the refusal of the court to render judgment on the pleadings.

The answer admitted or denied the allegations of the complaint in the first cause of action except as to paragraph three in which, and in the answer to each and every paragraph in the second cause of action, there is a denial, "except that part thereof which may be admitted in the further answer and defense."

The further answer and defense was not stated separately as to the first and second causes of action, but consists of the defendant's version of what occurred in connection with the matters and things alleged in both causes of action. It contains to a large extent purely evidentiary matter that might have been stricken. However, in our opinion, the answer is not so evasive and indefinite that it fails to deny the pertinent allegations of the complaint, and we so hold. Neither do we construe the further answer and defense to plead mitigation or justification of the alleged slanderous words set forth in the second cause of action, as contended by the plaintiff. This assignment of error is overruled.

In the second cause of action the plaintiff alleges two statements or sets of words which she contends were slanderous, but which were not uttered during the same conversation. Therefore, each set of words should have been pleaded in separate causes of action. The failure to do so, however, did not, in our view of this case, prejudice the rights of the parties. Cf. Elmore v. Atlantic Coast Line R. Co., 189 N.C. 658, 127 S.E. 710. Moreover, the plaintiff is not in a position to complain about the form of her own pleadings.

The words which she alleges charged her with stealing in connection with paying herself off, were not submitted to the jury. On the first issue in the second cause of action, the court instructed the jury as follows: "There are two sets of words referred to in the complaint. One set is as follows: `That is what I call stealing, paying yourself off when you have not earned *782 the money.' But, gentlemen, because of the evidence in this case, I instruct you that the issue is not referring to those words, for this reason. There is no evidence showing that those words were spoken in the presence and hearing of any person other than the plaintiff and the defendant." To this portion of the charge there is no exception. The appellant does except, however, to that portion of the charge which was given immediately thereafter, to wit: "There was some evidence to the effect that there were employees working in there and other folks in there but there is no evidence from which it could be said that anybody else heard those words. And, therefore, I instruct you that as to that incident, that alleged incident and those alleged words, that would not be sufficient, the evidence is not sufficient to support the cause of action for slander, based upon the utterance of those words."

We have carefully reviewed the evidence bearing on the question as to whether or not there was any publication of the accusation allegedly made against the plaintiff by the defendant in the conversation between them which took place in the office of the defendant immediately after the plaintiff paid herself off. In our opinion, the evidence with respect to publication is not sufficient to support a finding that any one other than the plaintiff and the defendant heard the conversation. A mere possibility that someone might have heard the alleged conversation is not enough. Wright v. Commercial Credit Co., 212 N.C. 87, 192 S.E. 844; McKeel v. Latham, 202 N.C. 318, 163 S.E. 747. There must be competent evidence from which the jury might find that there was a publication of the alleged slanderous words before the plaintiff is entitled to go to the jury on the issue as to defamation and publication. 33 Am.Jur., Libel and Slander, section 90, page 103; 53 C.J.S. Libel and Slander § 79, p. 127; Hedgepeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R. 232; McKeel v. Latham, supra; Alley v. Long, 209 N.C. 245, 183 S.E. 294; Wright v. Commercial Credit Co., supra; Satterfield v. McLellan Stores, 215 N.C. 582, 2 S.E.2d 709; Taylor v. Jones Bros. Bakery, 234 N.C. 660, 68 S.E.2d 313. Hence, the action of the court below in refusing to submit to the jury the excluded set of words as a cause of action will be upheld.

The slanderous words as set out in the second cause of action, to the effect that the defendant, in the presence of plaintiff's mother and another employee of defendant, said to the plaintiff, "You stole $35.00 of my money," were submitted to the jury upon an appropriate charge in substantial accord with our decisions, and the exceptions thereto are without merit.

We have examined the remaining exceptions and assignments of error, and, in our opinion, no prejudicial error has been made to appear that would justify disturbing the result of the trial below.

No error.