Logan v. Hodges
| Decision Date | 13 November 1907 |
| Citation | 59 S.E. 349,146 N.C. 38 |
| Parties | LOGAN v. HODGES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yadkin County; Moore, Judge.
Action for libel by J. A. Logan against J. D. Hodges. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial ordered.
Civil action to recover damages for publication of a libel. At the conclusion of the evidence, upon an intimation from his honor that he would charge the jury that, if they believed the evidence, the mailing of the postal card declared upon was qualifiedly privileged, that the burden of showing malice was upon the plaintiff, and that there was no evidence of actual malice, the plaintiff, having duly excepted, submitted to a nonsuit and appealed.
Exemplary damages may be awarded for a libel published in reckless indifference to the rights of others, the spirit of mischief or criminal indifference to civil obligations.
Holton & Reece and Benbow, Hall & Hanes, for plaintiff.
E. L Gaither, for defendant.
As gathered from the record, the facts upon which the plaintiff bases his right of action are as follows: The plaintiff was the treasurer of Yadkin county at the time the cause of the action arose, having been elected to said office at the regular election on November 6, 1904. As such treasurer, he had in his hands belonging to said county the sum of $4,139.09, and other moneys in cash, and had the same securely locked in an iron safe in his store in the town of Yadkinville, the county seat of Yadkin county, and on the night of September 6, 1904, the store house in which the said safe was located was broken into, and said safe containing said funds and moneys was blown open by unknown parties supposed to be burglars, and robbed of its contents. On September 9, 1904, the defendant, J. D. Hodges, wrote a postal card to one A. J. Martin, and sent same through the United States mails from some point in Davie county to Longtown post office in Yadkin county; the contents of the card being as follows: The defendant was at that date superintendent of public instruction and a resident of Davie county, and the addressee of the postal card, Martin, held the same office in Yadkin county.
1. That the words written upon the postal card are of such a character as makes them actionable per se is hardly debatable. They plainly imply the commission of a crime which not only involves moral turpitude and is punishable by imprisonment, which is sufficient to make words actionable per se, but under the law of this state constitutes a felony punishable by imprisonment in the state's prison. Odger, Libel & Slander, pp. 253-256; Brayne v. Cooper, 5 M. & W. 249; Posnett v. Marble, 62 Vt. 486, 20 A. 813, 11 L. R. A. 162, 22 Am. St. Rep. 126, and cases cited.
2. That there was a publication of the libel is proven by the testimony of the addressee, who testifies he received it in the mail, as well as by the testimony of the carrier and others. Communications in the nature of telegrams and postal cards containing defamatory matter, transmitted in the usual manner, are necessarily liable to be communicated to all the clerks through whose hands they pass. Newell on Slander & Libel, p. 233. The exact question was decided by the Supreme Court of Tennessee. In that case a clerk in one bank wrote on a postal card, and mailed it to a correspondent bank, in reference to a draft held for collection by the former for the latter, "Bowdie in the hands of a notary." The court held it to be a publication, and that the words, being false, were libelous and actionable per se, without proof of special damage. This case is cited with approval by Newell, Slander & Libel, p. 233, note. Besides, it is to be noted that the very method of making this communication adopted by defendant is prohibited by law and made a crime against the United States for the evident reason of its publicity. While the government may legislate against the reading of postal cards by those through whose hands they pass, it nevertheless recognizes the frailty of human nature, and prohibits the mailing of postal cards containing defamatory matter under severe penalties. 2 U.S. Comp. St. 1901, p. 2661.
3. The occasion of the publication was neither absolutely or qualifiedly privileged. It is contended by the learned counsel for defendant that the occasion was qualifiedly privileged because the communication concerned a public official of the county of Yadkin, and was written in the public interest. We admit the general proposition that it is the duty of all who witness or have knowledge of the misconduct of any public officer to bring such misconduct to the notice of those whose duty it is to inquire into it, but the complaining party must be careful to apply to some person who has jurisdiction to entertain the complaint or power to redress the grievance or some duty to perform or interest in connection with it. Newell on Slander & Libel, pp. 504, 505; Negley v. Farrow, 60 Md. 158, 45 Am. Rep. 715; Lansing v. Carpenter, 9 Wis. 540, 76 Am. Dec. 281; Hamilton v. Eno, 81 N.Y. 116. To illustrate: Words charging a party with theft, spoken in good faith under a belief of their truth and with probable cause to a police officer employed to detect the robber, are in the nature of a privileged communication. Smith v. Kerr, 1 Edm. Sel. Cas. (N. Y.) 190. So a letter accusing a school mistress of unchastity written in good faith to the school committee is privileged so as to put the burden on plaintiff to show actual malice. Bodwell v. Osgood, 3 Pick. (Mass.) 379, 15 Am. Dec. 228. The American & English Encyclopedia of Law states the law as follows: 18 Am. & Eng. Ency. (2d Ed.) p. 1040. The author has there collected many adjudications on the subject. In commenting on the subject, Mr. Odger says: Page 222; Newell, p. 475; Folkard's Starkie, p. 356, § 294. Byam v. Collins, 111 N.Y. 150, 19 N.E. 75, 2 L. R. A. 129, 7 Am. St. Rep. 726, is a full and instructive case. To the same effect are the rulings of the English courts. Dickeson v. Hilliard, 9 Exchequer, L. R. 79. In Bragg v. Sturt is was held by the Court of Queen's Bench in an action for libel that a letter to the Secretary of State, by an inhabitant of a borough, imputing to a person who is town clerk and clerk to the justices of the borough corruption in office is not a privileged communication. 59 E. C. L. Rep. 899. Lord Denman, delivering judgment, said: "We are of opinion that the defendant was not exempt from responsibility for that which would otherwise be a libel by reason of its being an application to a competent tribunal for redress, because the Secretary of State has no direct authority in respect to the matter complained of, and was not a competent tribunal to receive the application." In Harrison v. Bush, 5 Ellis & Black (Q. B.) 344, the rule is thus stated: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty is privileged if made to a person having a corresponding interest or duty, although it contained...
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