257 N.C. 281
N.C.
1962

Lead Opinion

DeNNY, C.J.

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:

*292“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 newpapers 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, 13 S.E. 775. In that case the defendant-, 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, unless the communication is privileged. Then the rule is otherwise.

“Privileged communications are of two kinds:

*293“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 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 A. & E., 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. Odgers Libel and Slander, 184. In this class of cases, an action will lie only where the party is guilty of falsehood and express malice. 13 A. & E., 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 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; Odgers, supra, 275. That the defendant was mistaken in the charges made by him on such confidential or privileged occasion, is, taken alone, no evidence of malice. Kent v. Bongartz, 2 Am. St. Reports, 870, and cases cited.

*294te # * * jf; however, there are 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 like 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’s, supra, 277-288; 13 A. & E., 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 Asso., 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. 777). There was other evidence of malice, * * * which is not set out in the third exception. The language of the circular might, therefore, be properly considered upon the question of malice. Newell on Defamation, 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, supra, 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 a deputy sheriff in Hertford County. The Court said: “As we understand it, a privileged communication is one which, under ordinary circumstances, would be defamatory made to another in pursuance of a duty, political, judicial, social, or personal, so that an action for libel or slander will not lie though the statement be false unless actual *295malice be proved in addition. The great underlying principle of the doctrine of privileged communications rests in public policy. Qualified privilege extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has some moral or legal duty to perform. The occasion on which the communication was made may rebut the inference of malice or it may tend to prove malice, and that the defendant was actuated by motives of personal spite or ill-will independent of the occasion on which the communication was made. Mr. Newell says, sec. 497, that a communication to be privileged must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or proper cause. The learned author further says, sec. 501, that if the communication, whether written or oral, be of such a character that the expressions in it are beyond what common sense indicates to be justifiable, it cannot be held as privileged. In regard to communications containing charges against public officers, Mr. Newell says: ‘It is the duty of all who witness any misconduct on the part of a magistrate or any public officer to bring such misconduct to the notice of those whose duty it is to inquire into and punish it; and, therefore, all petitions and memorials complaining of such misconduct, if prepared in good faith and forwarded to the proper authorities, are privileged.’ ” (Emphasis added)

Other cases in which privileged communications were considered, see Gattis v. Kilgo, 128 N.C. 402, 38 S.E. 931; s.c., 140 N.C. 106, 52 S.E. 249; Logan v. Hodges, 146 N.C. 38, 59 S.E. 349, 14 Ann. Cas. 103; Lewis v. Carr, 178 N.C. 578, 101 S.E. 97; S. v. Pub. Co., 179 N.C. 720, 102 S.E. 318; Elmore v. R.R., 189 N.C. 658, 127 S.E. 710; Hartsfield v. Hines, 200 N.C. 356, 157 S.E. 16; Stevenson v. Northington, 204 N.C. 690, 169 S.E. 622; Montgomery Ward & Co. v. Watson (4th C.C.A.), 55 F. 2d 184. See also, Law and Press (Revised Edition), by Lassiter, Section 1-26, page 63, et seq. Cf. Yancey v. Gillespie, 242 N.C. 227, 87 S.E. 2d 210.

What constitutes a privileged occasion is defined in 53 C.J.S., Libel and Slander, section 87, pp. 142 and 143, as “an occasion when for the public good and in the interests of society one is freed from, liability that would otherwise be imposed on him by reason of the publication of defamatory matter; one on which a privileged person is entitled to do something which no one not within the privilege is entitled to do on that occasion; and it has been said that it is not the publication itself, but the occasion of its publication, that is privileged,” citing Dupont Engineering Co. v. Nashville Banner Pub. Co. (D. C. Tenn.), 13 F. 2d 186.

*296This- same authority says in the above volume, section 89, pp. 143 and 144, dealing with the subject of qualified privilege: “Qualified privilege exists in a larger number of cases than does absolute privilege. It relates more particularly to private interests; and comprehends communications made in good faith, without actual malice, with reasonable or probable grounds for believing them to be true, on a subject matter in which the author of the communication has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social made to a person having a corresponding interest or duty. Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability, regardless of whether or not the communication is libelous per se or libelous per quod. * * *”

In light of the fact that the defendant William E. Cobb, at the time in question, was chairman of one of the major political parties in North Carolina and in the nation, he had the right to comment upon and criticize the conduct of election officials in Madison County on the occasion involved, if he honestly and bona fide believed and had probable cause to believe that the election officials in Madison County had falsely and fradulently certified incorrect returns of the votes cast in the State-wide bond election of 27 October 1959.

Furthermore, since the letters involved in these actions were addressed to the Governor of the State and to the State Board of Elections, proper parties from or through whom redress might be expected, we hold they were qualifiedly privileged. Any statements made by the defendant when he appeared before the State Board of Elections at the hearing on 17 November 1959 were likewise qualifiedly privileged. Moreover, since this was a State-wide bond election, and whether all the citizens of the State were particularly interested in the approval or rejection of the bond issues in this election, we must assume that every citizen of North Carolina is interested in each State-wide election being properly held in each and every precinct in the State. Therefore, we hold that the defendant did not lose his qualified privilege by releasing these letters to the press in North Carolina. The general rule is that a privileged communication does not lose its character as such or become an unprivileged communication unless there is excessive publication.

It is said in 53 C.J.S., Libel and Slander, Section 97, subsection (b) 3, page 155: “Where the communication does not concern the public at large, but only one person or a limited number of persons, the rule has been laid down that it will lose the privilege which it might other*297wise have had if it is published by means of a newspaper or circulars issued to the general public. Indeed, the same rule has been applied where, although the matter is of public interest within a limited territory, the publication takes place in a newspaper having a circulation beyond that territory. However, if the newspaper circulation beyond the territory is merely incidental and the communication is otherwise privileged, the privilege is not destroyed. * * *” See also 33 Am. Jur., Libel and Slander, Sections 187 and 188, pp. 178 and 179.

In the case of Farm Bureau Fed., et al., v. National F.U.S. Corp., et al. (10th C.A.), 198 F. 2d 20, 33 A.L.R. 2d 1186, the appellants had charged the Farmers Union with Communist domination. This charge had been published in certain newspapers and pamphlets. The Court said: “Appellants do not claim absolute privilege for their publications. They do claim, however, a qualified or conditional privilege, which they say under the facts entitle them to a directed verdict. The Utah courts, following the great weight of authority, hold that publications dealing with political matters, public officials or candidates for office, are entitled to a measurable privilege because of the public interest involved. As to this class of publications, the law raises a prima facie presumption in favor of the privilege. Williams v. Standard-Examiner Publishing Co., 83 Utah 31, 27 P. 2d 1, Derounian v. Stokes, 10 Cir., 168 F. 2d 305.

“The question whether the comment on or criticism of matters of public concern are fair and privileged, or malicious and libelous, is usually a question to be determined by the jury under all the circumstances, subject of course to the control of the court. Restatement of Law of Torts, Sections 614 and 618.”

Likewise, in the case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A. (N.S.) 361, 130 Am. St. Rep. 390, the plaintiff, in 1904, held the office of Attorney General of the State and was a candidate for re-election at the general election which occurred in the following November. By virtue of his office, he was a member of the commission charged with the management and control of the State School Fund. The defendant was the owner and publisher of the Topeka State Journal, a newspaper published at Topeka and circulated both within and without the State. In the issue of the date mentioned appeared an article purporting to state facts relating to the plaintiff’s official conduct in connection with a school fund transaction, making comment upon them and drawing inferences from them. Deeming the article to be libelous the plaintiff brought an action for damages against the defendant, alleging that the matter published was false and defamatory, and that its publication was the fruit of malice. Among other defenses the defendant pleaded facts which he claimed rendered the *298article and its publication privileged. From a verdict in favor of the defendant the plaintiff appealed and challenged the correctness of the following instruction: “ ‘As you have already observed from the statement of the case, defendant claims, as his first defense, that the publication is what is known in law as “privileged.” A communication made in good faith, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty, is privileged. And, where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office, and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith, and without malice, the article is privileged, although principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff, and in such a case the burden is on the plaintiff to show actual malice in the publication of the article. If you believe then from the evidence in this case that on August 20, 1904, plaintiff was a candidate for re-election to the office of Attorney General, and that defendant published said article for the sole purpose of giving to the voters of Kansas what he believed to be truthful information concerning the acts of the Attorney General, and only for th^ purpose of enabling such voters to cast their ballots more intelligently, and that the defendant made all reasonable effort to ascertain the facts before publishing the same, and that the whole thing was done in good faith, and without malice toward plaintiff, and if you believe that the bulk of the circulation of the said paper was within the state of Kansas, and that its circulation outside of the state of Kansas was only incidental, then I instruct you that your verdict must be for the defendant, although you may believe that the principal matters contained in said article are untrue in fact and derogatory to the character of the plaintiff; but, on the contrary, if you should find from the evidence that said article was published with a malicious intent to willfully wrong and injure plaintiff, then the fact that the article was a privileged one would constitute no defense to this action, and the plaintiff would be entitled to recover such damages as the evidence shows him to have sustained by reason of said publication.’ ” The Court upheld the instruction.

In Evening Post Co. v. Richardson, 113 Ky. 641, 68 S.W. 665, the defendant newspaper published an article charging the plaintiff with corruption in the discharge of his duties as an election official. The trial court sustained a general demurrer to the defendant’s plea of qualified privilege. On appeal, this was held for error. The Court quoted with *299approval from Miner v. Tribune Co., 49 Mich. 358, 13 N.W. 773, as follows: “ ‘The defendant contends that to call public attention to a matter that so vitally concerns the public is a matter of privilege, and that, by the presumption of law, its motives in doing so must be deemed proper, and not actuated by malice. The trial judge denied this claim altogether. In doing so he put the case on precisely the same footing with publications which involve merely private gossip and scandal. The truth was allowed as a defense, if made out; and so it would have been if the injurious charge which was published had been one in which the public was not concerned. If there is no difference in moral quality between the publication of mere personal abuse and the discussion of matters of grave public concern, then this judgment may be right and should be affirmed. But it is very certain, I think, that no declaration of this or any other court can convince the common reason that this distinction is not plain and palpable. Few wrongs can be greater than the public detraction which has only abuse, or profit from abuse, for its object. Few duties can be plainer than to challenge public attention to official disregard of principles which protect public and personal liberty.’ ” See also Bereman v. Power Pub. Co., 93 Colo. 581, 27 P. 2d 749, 92 A.L.R. 1024, and cited cases; Anno — Libel — Privilege, 92 A.L.R. 1029.

This assignment of error is well taken and is sustained. Therefore, it was error in the trial below not to give the defendant the benefit of the presumption that he made the statements contained in the letters involved in good faith and without malice. Ramsey v. Cheek, supra. The burden should have been placed upon the plaintiffs to establish by a preponderance of the evidence or by its greater weight that the defendant made his charges in bad faith, without probable cause and with express malice. Unless these facts are so established the plaintiffs are not entitled to recover.

According to the evidence disclosed on the record herein, each of the plaintiffs in these consolidated actions is an experienced election official, particularly the plaintiff Ponder. Each one of them testified that the State-wide bond election held on 27 October 1959 in the Marshall Precinct was the only election in which he had ever served when a poll book had not been kept. These plaintiffs clearly violated the mandatory provisions of G.S. 163-21, subsection 5, which reads as follows: “One of the judges of election shall keep a poll book in which shall be entered the name of every person who shall vote in the primary or election. The poll and registration books shall be signed by the registrar and judges of election at the close of any primary or election and filed with the chairman of the county board of elections.”

*300Therefore, in our opinion, the fact that no poll book was kept in this precinct, and no identifying mark was made on the cards containing the respective names of the voters who voted in said election, and the further fact that these cards were re-inserted in the general index before the truth or falsity of the charges with respect to improper election returns could be checked, constitute conduct for the consideration of the jury on the question of the defendant’s good faith in making his statements with respect to the returns certified by these plaintiffs from the Marshall precinct. If a poll book had been kept, it would have been a comparatively simple matter to have proven the correctness or the falsity of the returns made in this precinct. We do not condemn the use of the card system per se, but the manner in which it was used in Marshall precinct on 27 October 1959 in the State-wide bond election, coupled with the failure to keep a poll book, would seem to be indefensible.

The defendant assigns as error the denial of his motion for a special venire of jurors from another county for the reasons set out herein-above in the statement of facts. This was a matter to be determined in the sound discretion of the trial judge. His Honor’s discretion in this matter is not subject to review in the absence of a showing that he abused his discretion. No evidence of abuse of discretion has been shown. In this connection, however, if the able and patient judge who tried this case below could have foreseen the numerous hearings he would be compelled to conduct during the progress of the trial in connection with charges of alleged misconduct on the part of members of the jury, and which would make it necessary to remove one juror from the panel based on a finding that she was disqualified to serve and to substitute the thirteenth juror after the trial had been in progress four and one-half days, and the further fact that another member of the jury would go on a fishing trip over the week end of July 4th with the son-in-law of one of the plaintiffs; that another member of the jury would be charged with having made disqualifying statements after he had been summoned for jury duty, and a fourth member would be charged with having been subjected to improper outside influences during the course of the trial, he doubtless would have granted the defendant’s motion or removed this case to another county for trial. But none of these matters could be anticipated at the time he made his ruling on this motion. Hence, this assignment of error is overruled.

Since there must be a new trial, one further comment is appropriate. Plaintiff Runnion, over the objection of defendant, was asked and permitted to answer a question as follows:

*301“Q. * * * (S)tate whether or not that return there correctly and accurately reports the vote cast in the bond election in number one township, ward one on October 27, 1959?

■“A. It does.”

Like questions were asked and similarly answered by the other two plaintiffs. Whether or not the return made by plaintiffs reflected “correctly” the “vote cast” was the chief bone of contention in this action, and the conclusion was for the jury. A witness will not be allowed to give his opinion on the very question to be decided by the jury. Jones v. Bailey, 246 N.C. 599, 99 S.E. 2d 768; Cheek v. Brokerage Co., 209 N.C. 569, 183 S.E. 729; Trust Co. v. Store Co., 193 N.C. 122, 136 S.E. 289. Stansbury criticizes the rule, but makes the following comment: “If there must be an opinion rule, its application in each case ought to depend upon the practicability of breaking down the facts into their component details, and this in turn will depend, among other things, upon the importance of the proffered testimony in its relation to the outcome of the suit. The closer it approaches to the ultimate questions of whether the plaintiff shall recover, and if so how much, the greater the importance of consuming whatever time is necessary to get the exact picture before the jury; and when the picture has been secured there is no need for the witness’s ‘opinion.’ * * *” Stansbury, North Carolina Evidencé, section 126, page 243. However, plaintiffs may testify fully as to their conduct of the election, that they served as election officials, describe balloting procedures and state what irregularities they observed, if any, describe in detail how the ballots were counted, discuss the making of the abstract signed by them and state whether or not it was in accordance with the count, state whether or not the return was placed in a sealed envelope and whether the envelope was delivered at thé proper time to the county board of elections. In other words, they may fully testify to the way and manner in which they performed their duties as required General Statutes, Chapter 163, Articles 13 and 14. However, they may not then draw the conclusion which is for the jury.

The questions raised by other assignments of error may not recur when the case is tried again, and we therefore do not decide or discuss them.

New trial.





Concurrence Opinion

Higgins, J.,

concurring in result. I am in agreement with the excellent opinion of the Chief Justice except in one particular. The Court holds the plaintiffs were incompetent to testify the original return which they filed and certified to the County Board of Elections was true and correct. When first offered, the defendant objected to the *302testimony and stated as the ground of the objection, “It is absolutely leading, for one thing, on his own witness.” The Court now says the question and answer invaded the province of the jury.

This is the setting: The witnesses (plaintiffs) were the election officials. They were under oath. They held the election, counted the ballots, recorded, and certified the results. The original return was introduced in evidence and was before the witnesses.

The defendant charged the election was fraudulent and the return .false. When the plaintiffs were called as witnesses each testified the return from Marshall Precinct 1-1 on all the propositions submitted was true and correct. Each knew — not by deduction, not by what someone else said or did — but by first-hand knowledge whether the record spoke the truth. Their evidence no more invaded the province of the jury than the testimony of a plaintiff that the defendant borrowed $500 from him and had never paid it back.

The cases cited in the opinion do not support the exclusion of the testimony. In Jones v. Bailey, 246 N.C. 599, 99 S.E. 2d 768, the witness attempted to testify as to which driver had the right of way — a mixed question of law and fact. In Cheek v. Brokerage Co., 209 N.C. 569, 183 S.E. 729, the investigating officer tried to tell the jury that the two vehicles ran together 18 inches across the center line. Of course, he could properly testify as to what he found by way of debris, skid marks, etc. He could not testify by process of deduction as to the point of a collision which he did not see. In Trust Co. v. Store Co., 193 N.C. 122, 136 S.E. 289, a witness attempted to testify there was no fraud in a stock sale. The witnesses attempted to draw deductions which invaded the province of the jury.

Ponder, Rice, and Runnion made the records. They counted the ballots, recorded the totals, and certified the return — not by deduction, not by inference, not by reliance upon what some other person did or said — but from their own first-hand knowledge. They, so far as the record shows, were the only ones with first-hand knowledge. I think their testimony was properly admitted in reply to the charge their return was crooked.