Blackmon v. Valley Decorating Co.

• Decision Date: 28 April 1971
• Docket Number: No. 7126SC189,7126SC189
• Parties: James T. BLACKMON, Sr., Plaintiff, v. VALLEY DECORATING COMPANY, Inc. et al., Defendants, v. VAUGHN'S INC., Third Party Defendant.
• Court: North Carolina Court of Appeals

Page 396

180 S.E.2d 396

11 N.C.App. 137

James T. BLACKMON, Sr., Plaintiff, v. VALLEY DECORATING COMPANY, Inc. et al., Defendants, v. VAUGHN'S INC., Third Party Defendant.

No. 7126SC189.

Court of Appeals of North Carolina.

April 28, 1971.

Garland, Alala, Bradley & Gray, by Charles D. Gray, III, Gastonia, for defendant-appellant, Valley Decorating Co., Inc., et al.

James & Williams, by William K. Diehl, Jr., Charlotte, for Vaughn's Inc., additional party defendant appellee.

BRITT, Judge.

Did the trial judge commit error in granting Vaughn's motion for summary judgment and dismissing the counterclaim as to Vaughn's with prejudice? We answer in the negative.

Pertinent allegations of the counterclaim are as follows:

2. During November, 1969, in Belk's Stores in the City of Concord, North Carolina, the Plaintiff, acting as the authorized agent of Vaughn's, Inc., in the presence and hearing of one Harold Knowles, maliciously spoke of and concerning the Defendants, the statement that the Defendants were no longer in business and were a defunct corporation and, further, in the presence and hearing of one David S. Beaman of Troy, North Carolina, maliciously uttered the false and defamatory words that the Defendants were now out of business and further that the Defendants were dishonest in their business dealings.

3. The words so spoken were false and defamatory.

On 13 April 1970 Vaughn's filed an affidavit of its President, LeRoy F. Vaughn, setting forth its contentions as to plaintiff's status with Vaughn's. Among other things, the affidavit alleged:

Mr. Blackmon, as a sales representative or as an independent contractor, had no authority to act or speak for the Company. His only limited authority was to solicit orders for the sale of certain of the Company's products, and even this authority was subject to the approval of the Company.

The Company has no knowledge of the statement attributed to Mr. Blackmon as set out in the Counterclaim of the original defendants. Mr. Blackmon had no actual authority, express or implied, to utter such statements, if he did, as an agent for the Company. Nor did Mr. Blackmon have any apparent authority to speak for the Company, if he did, in such a manner. The statements attributed to Mr. Blackmon were not spoken, if they were, within the scope of any employment of Mr. Blackmon by the Company. Nor did such statements, if spoken by Mr. Blackmon, serve to further the business of the Company. In addition, the Company has never ratified nor intended to ratify the alleged statements of Mr. Blackmon.

Valley introduced no evidence to contradict the portion of the Vaughn affidavit above quoted or to supplement the allegations of its counterclaim first above quoted.

To sustain its counterclaim (or cross action) against Vaughn's at trial, the burden would be on Valley to show that at the time and in respect to the utterance of the words complained of plaintiff was acting within the course and scope of his employment by Vaughn's. Gillis v. Great Atlantic & Pacific Tea Company, 223 N.C. 470, 27 S.E.2d 283 (1943). In Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970), Parker, Judge, speaking for this court said:

The motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S. § 1A--1, Rule 56) is a procedure new to the courts of this State. (For an excellant discussion of the history and purpose of the summary judgment procedure, see opinion by Morris, Judge, in Pridgen v. Hughes, 9...