Osborn v. Leach
| Decision Date | 27 May 1904 |
| Citation | 47 S.E. 811,135 N.C. 628 |
| Parties | OSBORN v. LEACH et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; O. H. Allen, Judge.
Action by W. H. Osborn against M. T. Leach and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.
The question, under the statute, whether defendant in an action for libel exercised good faith, made an honest mistake, and had reasonable ground for believing the publication true, is a question for the jury.
King & Kimball, J. T. Morehead, and T. M. Argo, for appellant.
J. A Barringer, Armistead, Jones & Son, and Brooks & Thompson, for respondent Leach. Busbee & Busbee, for respondent News & Observer Pub. Co.
This is an action for libel against M. T. Leach and the News & Observer Publishing Company. Judgment by default for want of an answer and inquiry had been taken against the defendant Leach. 132 N.C. 1149, 45 S.E. 1037; 133 N.C. 427, 45 S.E 783. In the trial upon the merits, at the close of the plaintiff's evidence, the defendant Leach moved to dismiss "upon the ground that the newspaper article alleged to be libelous was not libelous, and that the plaintiff had not alleged a cause of action." The court, being of that opinion, instructed the jury, on account of the judgment by default and inquiry, to return a verdict of one penny as to Leach, and thereupon rendered a judgment against him for one penny damages and one penny costs. Code, § 525 (4). In this there was error. The publication inspired by the defendant Leach charges that the plaintiff bought for the State's Prison, of which he was a director, certain mules, giving $27 per head more than they were worth, and paying for horses double what they were worth, thus defrauding the State's Prison of that sum; and charging further that the plaintiff received for his services $5 for each mule bought, as commissions, his expenses, and several hundred dollars for his time, when, as director, by law he was entitled to $4 per day only (Laws 1899, p. 119, c. 24, § § 4, 9, 10), and that he committed a fraud upon Leach; thus charging a breach of official duty by the plaintiff as director of a state institution, and incompetence, if not worse, in the purchase of the mules and horses, and the receipt of pay in excess of that allowed by law. This language was libelous per se (Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775), and the burden was upon the defendant to prove its truth or matter in mitigation.
As to the other defendant, the News & Observer Publishing Company, the court allowed the motion made to dismiss upon the grounds (1) that the plaintiff had not given it the notice required by chapter 557, p. 784, Laws 1901; (2) that the plaintiff had not made out a case against it; and (3) upon the further ground that the plaintiff's counsel admitted in open court that the plaintiff had not sustained, and did not claim, any special damage. The second ground is disposed of by what is said above. The article was not copied from any paper which had then been filed in any legal proceeding, but was an oral statement by the defendant Leach to the reporter of the News & Observer of what he intended to file. The burden was upon the defendant publishing company to prove the truth of the publication, or to prove the absence of malice.
The other two points raise the question of the constitutionality of chapter 557, p. 784, Laws 1901, commonly known as the "London Libel Law." That statute has been adopted in several states in almost the identical words of our statute. It has been already presented in the Supreme Court of two of our sister states, and has been held to be unconstitutional in both, but because of the addition of words restricting "actual damages" to mean special damages, which words are omitted in our statute.
The Constitution of North Carolina provides: "All courts shall be open, and every person for an injury in his lands, goods, person, or reputation, shall have remedy by due course of law." Article 1, § 35. "The freedom of the press ought not to be restrained, but every individual shall be held responsible for the abuse of the same." Article 1, § 20. If, therefore, this chapter impairs the right of any one to recover for an injury to his reputation, or abridges the responsibility of the press for an abuse of the freedom of the press, the Legislature is clearly forbidden by the above sections of the Constitution from the enactment of such statute.
Section 1, c. 557, p. 784, Laws 1901, is as follows: It must be noted that there is no penalty on the plaintiff, nor any exemption to the defendant, if the plaintiff does not choose to give the five-days notice, but there is merely a provision that five days' notice must be given by the plaintiff, in the manner stated, before issuing his summons, and that, when such notice is given, then, if within 10 days the specified retraction is made, and it appears that the article was printed in good faith by honest mistake, and with reasonable ground to believe the statements to be true, the plaintiff can only recover actual damages. It was therefore error in the court to nonsuit the plaintiff, because good faith, honest mistake, and reasonable ground of belief were affirmative defenses, which the court could not adjudge. But independently of that, as the argument raises the constitutionality of the act, it is well to dispose of it.
The plaintiff is entitled to recover actual damages under the act of 1901, and actual are compensatory damages, and include (1) pecuniary loss, direct or indirect, or special damages; (2) damages for physical pain and inconvenience; (3) damages for mental suffering; and (4) damages for injury to reputation. Punitive damages are not included in what are termed actual or compensatory damages, and the act, upon the conditions therein specified, relieves and can relieve a defendant only against a claim for that particular kind of damages. They are awarded on grounds of public policy, and not because the plaintiff has a right to the money, but it goes to him merely because it is assessed in his suit. 18 Am. & Eng. Law (2d Ed.) 1091; Wallace v. Railway, 104 N.C. 452, 10 S.E 552. The right to have punitive damages assessed is therefore not property. The right to recover actual or compensatory damages is property. In our case the law presumes injury to the feelings, mental anguish, and injury to the reputation, the publication being libelous per se. The evidence of the plaintiff, besides, proves both these elements, and also physical suffering. There is no evidence of special damages, and it is not inferred. The plaintiff is entitled to recover compensation for mental and physical pain and injury to reputation. These are actual damages, and these are property. Hale on Damages, p. 2, note 5; Cooley, Const. Lim. (5th Ed.) 445. It cannot be extinguished except by act of the parties or by operation of the statute of limitation. Ib. This being an action upon a libel per se, the plaintiff has a right to recover compensatory damages. Newell on S. & L. 43; Hale on Damages, p. 99, note. Compensatory damages include all other damages than punitive, thus embracing not only special damages, as direct pecuniary loss, but injury to feelings, mental anguish, and damages to character or reputation. 18 Am. & Eng. Enc. (2d Ed.) 1082 et seq.; Hale on Damages, pp. 99, 106. "Actual damages" are synonymous with "compensatory damages" and with "general damages." Newell on S. & L. 839; 18 Am. & Eng. Enc. (2d Ed.) 1081 et seq. Damages for mental suffering are actual or compensatory, not special nor punitive, and are given to indemnify the plaintiff for the injury suffered. 1 Am. & Eng. Enc. (2d Ed.) 602. The law infers actual or compensatory damages for injury to the feelings and reputation of the plaintiff from a libel calculated to humiliate him or injure his reputation or character. In similar statutes adopted in other states the following words were added, which are wisely omitted in our statute, i. e., that actual damages shall mean only "such damages as the plaintiff has suffered in respect to his property, business, trade, profession or...
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