Ponder v. Cobb, 306

• Decision Date: 15 June 1962
• Docket Number: No. 306,306
• Citation: 257 N.C. 281,126 S.E.2d 67
• Parties: Zeno H. PONDER v. William E. COBB. Frank E. RUNNION v. William E. COBB. Oren RICE v. William E. COBB.
• Court: North Carolina Supreme Court

Page 67

126 S.E.2d 67

257 N.C. 281

Zeno H. PONDER v. William E. COBB.

Frank E. RUNNION v. William E. COBB.

Oren RICE v. William E. COBB.

No. 306

Supreme Court of North Carolina.

June 15, 1962

A. E. Leake, Marshall, and William J. Cocke, Asheville, for plaintiffs.

Meekins, Packer & Roberts, Asheville, and Clyde M. Roberts, Marshall, for defendant.

DENNY, Chief Justice.

The trial of these consolidated cases began on 26 June 1961 and ended on 14 July 1961. The record contains 802 pages, exclusive of numerous exhibits. The appellant's brief contains 111 pages and, in addition thereto, an appendix containing 50 pages of in chambers proceedings in connection with several separate motions made by the defendant for a mistrial based on alleged misconduct or other alleged cause for the disqualification and removal of certain members of the jury who had been impaneled to sit and hear the consolidated cases. The appellees' brief contains 154 pages, and the appellant has ten assignments of error based on 198 exceptions. We deem it unnecessary to undertake a seriatim discussion of all the questions raised. However, we will undertake to consider and discuss those exceptions and assignments of error which we deem essential to a proper disposition of this appeal.

The defendant assigns as error the refusal of the court below to sustain his motion for judgment as of nonsuit in each of these cases, interposed at the close of the plaintiffs' evidence and renewed at the close of all the evidence. A careful consideration of the evidence adduced in the trial below leads us to the conclusion that it was sufficient to carry the cases to the jury. Hence, this assignment of error is overruled.

Assignment of error No. 8 challenges the correctness of the following portions of the court's charge to the jury:

'A communication regarding the character or conduct of a public officer made to a person or persons having no authority to afford redress in the matter is not privileged under the law of this state, and so, the court instructs you, ladies and gentlemen, that in this case the defendant had neither an absolute privilege nor a qualified privilege to make a false, defamatory statement about either of these plaintiffs to the newspapers of North Carolina.' (EXCEPTION 159)

'He would have had a qualified privilege to take a grievance about the way and manner in which elections in Madison County are conducted to the State Board of Elections, or to the Governor. We will assume for the purpose of this trial that the Governor was a person having authority to afford some redress in the matter, to do something about his grievance, and, had his communications been only to the Governor and only to the State Board of Elections, then he would have had a qualified privilege, the law would have assumed he was acting in good faith and without malice and would have placed the burden on the plaintiff to satisfy the jury that he acted in bad faith and was actuated by actual malice.' (EXCEPTION 160)

'The defendant admitted that he released these matters to the newspapers of North Carolina on each occasion. The court instructs you that under the law in this State, the contents of these releases are defamatory on their face and he had no absolute or qualified privilege to make them.' (EXCEPTION 161)

One of the leading cases in this jurisdiction dealing with the doctrine of privileged communications in the law of libel and slander is Ramsey v. Cheek, 109 N.C. 270, 130 S.E. 775. In that case the defendant, who resided in Hillsboro, North Carolina, wrote a letter to the Superintendent of Census charging that a Mr. Hawkins had appointed in the district a 'large majority of enumerators, extreme Democrats, ballot-box stuffers, among them murderers and drunkards'; that he had appointed in Durham a man named Ramsey who 'murdered, since the war * * * two Union soldiers while they were asleep. This same man was the leader in defrauding me and Mr. Nichols out of our election last election,' et cetera.

When this case came on for trial, the court held that the communication was privileged and that there was no evidence of malice. The plaintiff submitted to a nonsuit and appealed. Clark, J., later C. J., speaking for the Court, said:

'In libel and slander, if the words are actionable per se, the law presumes malice, and the burden is on the defendant to show that the charge is true. It is otherwise if the communication is privileged.

'Privileged communications are of two kinds:

'(1) Absolutely privileged,--which are restricted to cases in which it is so much to the public interest that the defendant should speak out his mind fully and freely that all actions in respect to the words used are absolutely forbidden, even though it be alleged that they were used falsely, knowingly, and with express malice. This complete immunity obtains only where the public service or the due administration of justice requires it, e. g., words used in debate in congress and the state legislatures, reports of military or other officers to their superiors in the line of their duty, everything said by a judge on the bench, by a witness in the box, and the like. In these cases the action is absolutely barred. 13 Amer. & Eng.Enc.Law, 406.

'(2) Qualified privilege. In less important matters, where the public interest does not require such absolute immunity, the plaintiff will recover in spite of the privilege if he can prove that the words were not used bona fide, but that the defendant used the privileged occasion artfully and knowingly to falsely defame the plaintiff. Odger, Sland. & L. 184. In this class of cases an action will lie only where the party is guilty of falsehood and express malice. 13 Amer. & Eng.Enc.Law, supra. Express malice is malice in fact, as distinguished from implied malice, which is raised as a matter of law by the use of words libelous per se, when the occasion is not privileged. Whether the occasion is privileged is a question of law for the court, subject to review, and not for the jury, unless the circumstances of the publication are in dispute, when it is a mixed question of law and fact.'

The Court further held that the defendant's communication was '* * * one of qualified privilege. * * * It was not absolutely privileged. But he was an American citizen, interested in the proper and efficient administration of the public service. He had, therefore, the right to criticise public officers; and if he honestly and bona fide believed, and had probable cause to believe that the character and conduct of the plaintiff were such that the public interest demanded his removal, he had a right to make the communication in question, giving his reasons therefor, to the head of the department. The presumption of law is that he acted bona fide, and the burden was on the plaintiff to show that he wrote the letter with malice or without probable cause. * * *'

The Court also said: 'Proof that the words are false is not sufficient evidence of malice, unless there is evidence that the defendant knew at the time of using them that they were false. Fountain v. Boodle, 43 E.C.L. 605; Odger, Sland. & L. 275. That the defendant was mistaken in the words made by him on such confidential or privileged occasion is, taken alone, no evidence of malice. Kent v. Bongartz, 15 R.I. 72, 22 Atl.Rep. [1023, 2 Am.St.Rep. 870], and cases cited.

'* * * If, however, there were means at hand for ascertaining the truth of the matter, of which the defendant neglects to avail himself, and chooses rather to remain in ignorance when he might have obtained full information, there will be no pretense for any claim of privilege. * * * The malice may be proved by some extrinsic evidence, such as ill-feeling, or personal hostility, or threats, and the life, on the part of the defendant towards the plaintiff; but the plaintiff is not bound to prove malice by extrinsic evidence. He may rely on the words of the libel itself, and on the circumstances attending its publication, as affording evidence of malice. Odger, Sland. & L. 277-288; 13 Amer. & Eng.Enc.Law, 431. * *

'If the party knows the charge to be false, or makes it without probable cause, this is evidence of malice.' See also Bailey v. Charleston Mail Ass'n, 126 W. Va. 292, 27 S.E.2d 837, 150 A.L.R. 348.

In the case of Byrd v. Hudson, 113 N.C. 203, 18 S.E. 209, the action was based on a circular letter published and circulated by the defendants to the Democratic voters of Wayne County, North Carolina, in which the defendants charged the plaintiff with a crime. The defendants appealed from a verdict in favor of the plaintiff. This Court found no error in the trial below. In considering the appeal, among other things, this Court said: 'The instruction now excepted to, that 'the language of the circular, which imputes to plaintiff a crime, and alleges that one of the defendants had been damaged by him, may be considered by the jury in finding whether the defendants were actuated by malice in making the publication,' is therefore unobjectionable. Bradsher v. Cheek, 109 N.C. 278, 13 S.E.Rep. 777. There was other evidence of malice, * * * which is set out in the third exception. The language of the circular might therefore be properly considered in connection with the other evidence in passing upon the question of malice. Newell, Defam. 770.

'It should be noted that in cases of qualified privilege, though proof of falsity does not per se raise a presumption of malice, yet proof of malice takes away the protection of privilege, and shifts the burden of proving the truth of the charge upon the defendant. Ramsey v. Cheek, 109 N.C. 270, 13 S.E.Rep. 775, and cases cited * * *.'

In Alexander v. Vann, 180 N.C. 187, 104 S.E. 360, the defendant wrote a letter to the Sheriff of Pitt County with regard to alleged misconduct of the plaintiff, a deputy sheriff of Hertford County. The Sheriff of Pitt County had no authority or control over the conduct of...