Davis v. Askin's Retail Stores, Inc.

• Decision Date: 28 April 1937
• Docket Number: 530.
• Citation: 191 S.E. 33,211 N.C. 551
• Parties: DAVIS v. ASKIN'S RETAIL STORES, Inc., et al.
• Court: North Carolina Supreme Court

191 S.E. 33

211 N.C. 551

DAVIS v. ASKIN'S RETAIL STORES, Inc., et al.

No. 530.

Supreme Court of North Carolina

April 28, 1937

Appeal from Superior Court, Mecklenburg County; G. V. Cowper Special Judge.

Action by Clarence H. Davis, by his next friend, B. O. Davis against Askin's Retail Stores, Incorporated, and another. From an order overruling a demurrer to the complaint defendants appeal.

Affirmed.

Letter that merchant had just learned that customer had left city and state with merchandise which had been leased to customer and that by removing property which did not belong to customer he had violated law of city and state and had made himself liable to prosecution, held libelous and actionable without averment of special damages.

Civil action for libel. The complaint alleges that the plaintiff, then seventeen years of age, received through the mail from the defendants the following false and libelous communication: "Collection Department Askin's-Clothing for the Family. Dear Customer: We have just learned through our special investigator that you have left the City and State with merchandise which was leased to you under a signed contract. By removing property which does not belong to you, you have violated the laws of this City and State, and by so doing you have made yourself liable to prosecution. This law was passed for the protection of merchants against people who wilfully convert to their own use, merchandise sold to them under lease. We do not know whether you intended to evade this obligation by leaving the city, or not, but we will have to arrive at that conclusion unless you settle the account at once. Naturally we would prefer to have you settle this account without any trouble, but unless we hear from you within three days, we will assume that it is not your intention to pay and we will then have to turn the whole matter over to the proper authorities, for whatever action is prescribed by the law. Very truly yours, Askin's. Geo. Lefler, Mgr."

It was further alleged that the plaintiff, an inexperienced youth, believing he was threatened with prosecution for a criminal offense, naturally consulted others and exhibited the communication to them, and that the defendants knew that the plaintiff, by reason of his youth and under the emotion of fear, would divulge the contents of the letter to others as a natural and probable result of defendants' wrongful act.

The defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, for that the writing quoted was not libelous per se and no special damages were alleged; and also that it appeared in the complaint that the alleged libel was published by the plaintiff himself and not by defendants.

The demurrer was overruled, and defendants excepted and appealed.

Fred B. Helms, of Charlotte, for appellants.

Carswell & Ervin, of Charlotte, for appellee.

DEVIN Justice.

The sufficiency of the complaint is challenged by the demurrer on two grounds: (1) That the writing complained of is not libelous per se and contains no averment of special damage; and (2) that the complaint shows there was no publication of the alleged libel by the defendants.

1. The distinction between oral and written defamation is well recognized. To determine whether the particular words used are actionable per se, it is necessary to apply a different rule in case of libel from that applicable to slander.

In Simmons v. Morse, 51 N.C. 6, 7, it was said: "A libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs, or pictures, tending either to blacken the memory of one dead, or the reputation of one alive, and expose him to public hatred, contempt or ridicule. * * * Any written slander, though merely tending to render the party liable to disgrace, ridicule or contempt, is actionable though it do not...