Stevenson v. Northington

• Decision Date: 14 June 1933
• Docket Number: 626.
• Citation: 169 S.E. 622,204 N.C. 690
• Parties: STEVENSON v. NORTHINGTON et al.
• Court: North Carolina Supreme Court

169 S.E. 622

204 N.C. 690

STEVENSON v. NORTHINGTON et al.

No. 626.

Supreme Court of North Carolina

June 14, 1933

Appeal from Superior Court, Buncombe County; Alley, Judge.

Action by Julia La Salle Stevenson against Dr. James M. Northington and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

In action for libel on alleged privileged occasion, instruction that, unless articles were published with some malice, and not necessarily ill will, but without just cause or excuse that would end case, held free from reversible error, as respects sufficiency of pointing out distinction between actual and implied malice.

Civil action for libel. The Tri-State Medical Association was not served with summons.

The plaintiff, who testifies that she is a professional teacher of educational psychology, a lecturer on personality, beauty and charm, was pursuing her profession in Charlotte, N. C during the summer of 1926, when the defendant, who is the editor of the official organ of the Tri-State Medical Association, Southern Medicine and Surgery, published in said magazine, in the June and July issues, articles of and concerning the plaintiff, one under the heading: "For War on Medical Fakers: With Field Notes of a Skirmish: The Fantastic Cults and Isms Will Be Energetically Opposed and Exposed at Every Opportunity," meaning thereby to charge the plaintiff with being a faker, a teacher of fantastic isms, and a member of fantastic cults. It was asserted in said article that the plaintiff had been arrested in Florida for practicing medicine without a license, which was true but omitted to state that the case against her was dismissed. Defendant's publication also contained the statement that plaintiff advertised in McFerrin's Health Bulletin, "whose columns were patronized by either quacks or faddists, and doubtless 'Dr.' Stevens feels at home among this class."

Plaintiff testified that the defendant came to her hotel while she was in Charlotte and threatened to do her harm. He is alleged to have said, "I will find something, if I want to, against you, and I am going to"; whereupon the defendant was shown the door. Plaintiff lectured upon such subjects as "The Cause of Old Age," "How to Stay Young," "Rejuvenation Through Auto-Suggestion," "Eating Your Way Back to Health," "Forces Within You and How to Use Them," and other subjects of like nature.

Again, in the summer of 1931, while the plaintiff was lecturing in Asheville, N. C., or preparing to lecture before the Asheville Normal and Teachers' College, the defendant wrote to Dr. John E. Calfee, president of said institution, and inclosed copies of his articles as "bits of information for whatever disposal you care to make," which said articles were read before the school, and the plaintiff's work brought to a close.

The defendants, other than the Tri-State Medical Association, pleaded the truth of the articles as a defense, also their qualified privilege, and alleged that they were written in good faith, without any malice or ill will towards the plaintiff.

The jury returned the following verdict:

"1. Did the defendant publish of and concerning the plaintiff the matters alleged in the complaint by writing letter and mailing clippings from his publication to Dr. John E. Calfee? Answer: Yes.

"2. Were such statements false and defamatory? Answer: Yes.

"3. Was such publication done in malice? Answer: Yes.

"4. What damage, if any, is plaintiff entitled to recover? Answer: $3,000."

Judgment on the verdict in the general county court, from which the defendants appealed on questions of law to the superior court of Buncombe county where the judgment of the trial court was upheld.

From this latter judgment the defendants appeal, assigning errors.

B. S. Whiting and Brock Barkley, both of Charlotte, for appellants.

Kitchin & Kitchin and Weaver & Miller, all of Asheville, for appellee.

STACY, Chief Justice (after stating the case).

The trial court held that the original publication of the alleged defamatory articles was privileged, and limited the plaintiff to the subsequent publication of said articles in 1931, when the defendant mailed them to Dr. Calfee, president of the Asheville Normal and Teachers' College, and caused plaintiff's work in Asheville to be stopped.

It is the contention of the defendant that this letter was at least qualifiedly privileged, and therefore both falsity and actual or express malice must be shown to establish liability. Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775; Brown v. Lbr. Co., 167 N.C. 9, 82 S.E. 961, L. R. A. 1915E, 275, Ann. Cas. 1916E, 631; Newberry v. Willis, 195 N.C. 302, 142 S.E. 10; Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16.

The question is presented by exception to the following instruction on the third issue: "The Court instructs you unless it was done with some malice, not necessarily ill-will; but without just cause or excuse, why then that would end the case--that is to say, if it was in good faith, why then that would end the case."

The contention is that, in a case of this kind, express or actual malice must be proved, and not merely legal or implied malice; and Ramsey v. Cheek, supra, is cited as a controlling authority on the subject. There it was said: "In this class of cases [qualified privilege] an action will lie only where the party is guilty of falsehood and express malice. 13 Amer. & Eng. Enc. Law, 406. 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."

But taking the instruction in connection with other portions of the charge, we do not regard it as necessarily offending against the distinction between actual and implied malice, though it might have been clearer. Speaking to a similar instruction in Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931, 933, it was said: "In his charge on the question of malice his honor was also correct in stating in substance that, although the malice, which is a necessary ingredient in the constitution of a libel where the publication is privileged, is actual or express malice,--that...