Ramsey v. Cheek

• Decision Date: 08 November 1891
• Citation: 109 N.C. 270,13 S.E. 775
• Court: North Carolina Supreme Court
• Parties: Ramsey v. Cheek.

13 S.E. 775

109 N.C. 270

Ramsey

v.Cheek.

Supreme Court of North Carolina.

Nov. 8, 1891.

Libel—Privileged Communications — Charges against Public Officer.

An alleged libel consisted in a letter written by the defendant to the superintendent of the United States census, wherein it was stated that the defendant thought himself entitled to recommend some of his political friends in the district In which he lived, and have them appointed as enumerators; that the supervisor, however, had paid no attention to his recommendations, but had appointed the plaintiff a man who had since the war murdered two union soldiers, and been instrumental also in defrauding the defendant out of his election to the legislature. There was evidence that the charges were untrue, and that the character of the plaintiff was good. There was no evidence in reply, and the answer admitted that the object of the defendant was to secure plaintiff's removal from office. Held, that the communication was one only of qualified privilege, and that, as there was evidence tending to show malice, the case should have been submitted to the jury.

Appeal from superior court, Durham county; Edwin T. Boykin. Judge.

This was an action for libel, brought by N. A. Ramsey against James A. Cheek. The alleged libel consisted of the following letter, written by the defendant, concerning the plaintiff and others, and was addressed to the Honorable Robert Porter, superintendent of the Eleventh United States census: "Hillsboro, N. C, June 10th, 1890. Hon. Robert Porter, Washington, D. C.— Dear Sir: In this district, Mr. Hawkins [the supervisor] appointed a large majority of enumerators, extreme Democrats, ballot-box stuffers, among them murderers and drunkards. I, having represented the county and Durham in the state legislature, having been the Republican candidate for the state senate last election, thought that I was entitled to recommend and get a part of my Republican friends appointed enumerators, but instead of this Hawkins pays no attention to me and friends, but appoints in Durham a man named Ramsey, who murdered, since the war, over 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. Another of his appointees, * * *. The above characters is a sample of the kind of men Hawkins appointed. We do not know, or can we understand, such work coining from a Republican. Some good men say he has boodled out the places to Democrats to injure the Republican cause in the future. Whoever has control or recommends the appointments in North Carolina, does not care for the interest of the Republican party in this section. * * * Respectfully, JamesA.Cheek." The court held, as a matter of law, that the communication was privileged, and that, as there was no evidence of express malice, plaintiff could not recover. From an order taking the case from the jury plaintiff appeals. Reversed.

W. A. Guthrie and J. S. Manning, for appellant.

J. W. Graham and Boone & Parker, for appellee.

Clark, J. The words used charged the plaintiff with an indictable offense, and also were calculated to disparage him in his office. They were actionable per se. The defendant introduced no evidence, neither to prove the truth of the allegations, nor to show that he had written the letter for an honest, bona fide purpose; but contended that the letter was a privileged communication, and that the burden was on the plaintiff to show express malice, which he had failed to do. The court being of opinion with the defendant, the plaintiff took a nonsuit and appealed. Ordinarily, 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 present case is one of qualified privilege. The plaintiff was not in government employ under Porter. He was not called upon by any moral or legal obligation to make the report, and it was not made in the line of official duty. 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 hehonestly 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 ...