Scott v. Statesville Plywood & Veneer Co.

• Decision Date: 07 April 1954
• Docket Number: No. 382,382
• Citation: 240 N.C. 73,81 S.E.2d 146
• Court: North Carolina Supreme Court
• Parties: SCOTT, v. STATESVILLE PLYWOOD & VENEER CO., Inc.

Page 146

81 S.E.2d 146

240 N.C. 73

SCOTT, v. STATESVILLE PLYWOOD & VENEER CO., Inc.

No. 382

Supreme Court of North Carolina.

April 7, 1954

W. H. Childs, Lincolnton, and W. M. Nicholson, Charlotte, for plaintiff appellant.

Hal B. Adams, Lenoir and Scott, Collier & Nash, Statesville, for defendant appellee.

BARNHILL, Chief Justice.

The plaintiff does not specify in his complaint the exact language used in the complaint in the Caldwell County case which he alleges constitutes the libelous statements of and concerning him. Nor does he set forth the substance thereof. It is apparent that, instead, he recites his conclusions as to the meaning, force, and effect of the words used by defendant in his complaint and affidavit and in the notice of summons published as substituted service of summons and notice of attachment. He alleges that this defendant in said instruments 'accuses this plaintiff of the crime of embezzlement and fraud;' and 'accuses this plaintiff of having a scheme * * *' etc. These and like allegations are patently plaintiff's description of the sense and substance of, or his conclusion as to, the imputations to be attributed to the language actually used.

The declaration or complaint ought to state the libel in the original language. Whitaker v. Freeman, 12 N.C. 271, Fed.Cas. No. 17,527a; Burns v. Williams, 88 N.C. 159; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168.

Be that as it may, the demurrer is not directed to the form of the allegations. On the question here presented for decision the form of the allegations is immaterial. It is made to appear affirmatively on the face of the complaint that the language used by defendant was used in the pleadings and other papers directly connected with and forming a part of a duly constituted judicial proceeding. Therefore, whether the plaintiff pleads the exact language or the substance thereof or merely the innuendoes arising therefrom, the result is the same. The complaint fails to state an actionable wrong.

The controlling rule is stated by Johnson, J., speaking for the Court, in Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248, 251, as follows:

'The general rule is that a defamatory statement made in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice. ' (Authorities cited.) See also Annotation 16 A.L.R. 746, 42 A.L.R. 878, 12 A.L.R. 1250; Abbott v. National Bank, 175 U.S. 406, 20 S.Ct. 153, 44 L.E.d 217.

While statements in pleadings and other papers filed in a judicial proceeding are not privileged if they are not relevant or pertinent to the subject matter of the action, the question of relevancy or pertinency is a question of law for the courts, and the matter to which the privilege does not extend must be so palpably irrelevant to the subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety. If it is so related to the subject matter of the controversy that it may become the subject of inquiry in the course of the trial, the rule of absolute privilege is controlling. 33 A.J. 146, sec. 150; A.L.I. Torts 233; Harshaw v. Harshaw, 220 N.C. 145, 16 S.E.2d 666, 136 A.L.R. 1411.

But plaintiff stressfully contends that the plea of absolute privilege is an affirmative defense which must be taken advantage of by answer and not by demurrer. On this record his contention in this respect is untenable.

The office of a demurrer is to test the sufficiency of a complaint or other pleading. Teague v. Silver City Oil Co., 232 N.C. 469, 61 S.E.2d 345; Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218; McDowell v. Bylthe Bros. Co., 236 N.C. 396, 72 S.E.2d 860; Commerce Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Madry v. Scotland Neck, 214 N.C. 461, 199 S.E. 618.

If it is asserted that the complaint is fatally defective and the defect appears on the face of the complaint, that is, that it is wholly insufficient to state a cause of action, the question should be raised by demurrer. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538; Poovey v. City of Hickory, 210 N.C. 630, 188 S.E. 78; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393; Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43; In re York's Will, 231 N.C. 70, 55 S.E.2d 791; Mcydowell v. Blythe Bros. Co., supra.

'A demurrer is designed to challenge the sufficiency of a complaint which contains the statement of a defective cause of action, McIntosh, N. C. P. & P., 399, 455, and is to be resorted to when the complaint is fatally defective in this respect. ' Davis v. Rhodes, supra [231 N.C. 71, 56 S.E.2d 45], and cases cited.

In this connection we must bear in mind that a fatal defect in a complaint may consist either of (1) a want of averment of some essential element of plaintiff's alleged cause of action--a defective statement of a good cause of action; or (2) the positive allegation of some fact or combination of facts which affirmatively...