Vincent v. Powell

• Citation: 1 S.E.2d 826,215 N.C. 336
• Decision Date: 22 March 1939
• Docket Number: 162.
• Parties: VINCENT v. POWELL et al.
• Court: United States State Supreme Court of North Carolina

1 S.E.2d 826

215 N.C. 336

VINCENT v. POWELL et al.

No. 162.

Supreme Court of North Carolina

March 22, 1939

Civil action to recover damages for alleged slander heard upon demurrer of defendants to amended complaint filed by plaintiff.

Pertinent portions of the complaint as basis for alleged damages are "5. That on the 24th of April, 1938, the plaintiff was at Roanoke Junction, N. C., to meet a relative who was coming in on a train at 6:30 o'clock, A. M. A bundle of News and Observers, in the custody or possession of defendants, were scattered on the ground and the plaintiff picked up one and was reading it when the night ticket agent of the defendants while on duty, spoke of and concerning the plaintiff in the presence of divers and sundry people, in substance, the following false, malicious, and defamatory matter, to-wit Said ticket agent asked the plaintiff what he was doing, to which the plaintiff replied, 'I was reading a newspaper', to which said agent stated, 'No, you are just stealing' (meaning a newspaper).

"6. The defendants intending by said matter to charge the plaintiff with the crime of larceny or embezzlement."

Defendants demur thereto for that the complaint does not state facts sufficient to constitute a cause of action, in that "(1) It is not alleged therein that the night ticket agent of the defendants was engaged in the defendants' business, or that he was acting within the scope of his employment when he uttered the alleged slanderous language.

"(2) It is not alleged therein that the act of the night ticket agent of defendants was expressly authorized by defendants or was ratified by defendants.

"(3) The facts alleged in the complaint show that the night ticket agent of the defendants was not engaged in the defendants' business and was not acting within the scope of his employment in uttering the alleged slanderous language."

The court, being of opinion that the amended complaint states a cause of action, decreed that the demurrer be overruled, from which ruling defendants appeal to the Supreme Court and assign error.

J. Winfield Crew, Jr., of Roanoke Rapids, and Geo. C. Green, of Weldon, for appellee.

Murray Allen, of Raleigh, for appellants.

WINBORNE Justice.

The appellants present this question: Does the complaint to which the defendants demur contain allegations sufficient to state a cause of action against the master for slander by a servant?

In considering this question we are of opinion that the court below followed the reasoning and reading of decisions of this Court.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted ***". Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763; Andrews v. Oil Co., 204 N.C. 268, 168 S.E. 228; Toler v. French, 213 N.C. 360, 196 S.E. 312; Pearce v. Privette, 213 N.C. 501, 196 S.E. 843; Commerce Insurance Co. v. McCraw, N.C., 1 S.E.2d 369.

Both the statute and decisions require that the complaint be liberally construed and every reasonable intendment and presumption must be in favor of the pleader. The complaint must be fatally defective before it will be rejected. C.S. § 535. Insurance Co. v. McCraw, supra, and cases there cited.

"It is the accepted principle here and elsewhere that corporations may be held liable both for the willful and negligent torts of their agents, and that the principle extends to actions for slander when the defamatory words are uttered by express authority of the company or within the course...