Stevenson v. . Northington
169 S.E. 622
N.C.
1933
Check Treatment
Stacy, C. J.,

after stating the case: The trial court held that the ■original publication of the alleged defamatory articlеs was privileged, and limited the plaintiff to the subsequent publication of said articles in 1931, when the defendant mailed them tо Dr. Calfee, president of the Asheville Normal and Teachers College, and caused plaintiff’s work in Asheville to bе stopped.

It is the contention of the defendant that this letter was, at least, •qualifiedly privileged, and, thereforе, both falsity and actual or express *693 malice must be shown to establish liability. Ramsey v. Cheek, 109 N. C., 270, 13 S. E., 775; Brown v. Lumber Co., 167 N. C., 9, 82 S. E., 961; 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 issuе: “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 hind, еxpress 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 A. & E., 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.”

Rut 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, it was said: “In his charge оn the question of malice, his Honor was also correct in stating in substance that although the malice, which is a neсessary ingredient in the constitution of a libel where the publication is privileged, is actual or express malicе — that which is popularly called malice — and not malice in law, yet that it was not necessary that the ill-will or maliсe of the defendant should have been against the plaintiff personally, and that if the publication was not in good faith for the reason claimed, but from a wrongful, indirect and ulterior motive and was false, the same would be malicious. The request, therefore, of the defendants’ counsel to the court for instruction that malice in fact means рersonal ill-will and a desire to injure the plaintiff was properly refused. Ramsey v. Cheek, 109 N. C., 270; Odgers Libel and Slander, 266, 267.”

In actions for libel, it is not necessary that рarticular ill-will or malice should exist toward the plaintiff. Savage v. Davis, 131 N. C., 159, 42 S. E., 571. It may be otherwise in an action for malicious proseсution. Brooks v. Jones, 33 N. C., 260; Dickerson v. Refining Co., 201 N. C., 90, 159 S. E., 446. Or where punitive damages are sought to be recovered. Tripp v. Tobacco Co., 193 N. C., 614, 137 S. E., 871.

*694 It will be observed that in the instruction bere complained of tbe jury was told if the letter in question was written in good faith, “why then that would end the case.” So, the jury must have found that the articles ‍​‌‌‌‌‌​‌​​​​​​​‌‌‌‌​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌​​‌​​​​‌‍were false, and that the letter was mailed to Dr. Oаlfee maliciously or for no good purpose. The plaintiff was required to show that the defendant was governеd by a bad motive, and that he did not act in good faith. Riley v. Stone, 174 N. C., 588, 94 S. E., 434. Malice in this connection is defined as “any indirect and wicked motive which induces the defendant to defame the plaintiff. If malice be proved, the privilege attaching to the occasion is lost at once.” Odgers Libel and Slander, 267. The privilege attaching to the occasion in the instant case, therefore (if indeed any attached, which may be doubted), was at once lost upon the showing of malice. Ramsey v. Cheek, supra; Bryd v. Hudson, 113 N. C., 203, 18 S. E., 209.

The plaintiff contends that in mailing the letter to Dr. Oalfee, the defendant was not actuated by any desire to protect the public, but was possessed of a spirit of unkindness, and sent the letter “with intent to injure her.” The defendant, on the other hand, says that he was merely interested in the medical profession; that he acted in good faith, with no ultеrior motive, and that he mailed the letter only in the interest of the public good. These contentions were fully given tо the jury by the trial court in its instructions. Hence, viewed in the light of the whole charge, it would seem that the excerpt is freе from reversible error. Lewis v. Carr, 178 N. C., 578, 101 S. E., 97; Adcock v. Marsh, 30 N. C., 360.

Having reached the above conclusion with respect to the exception to the charge, it is unnecessary to decide whether the occasion was in fact “unprivileged” as the plaintiff сontends (Alexander v. Vann, 180 N. C., 187, 104 S. E., 360), or “qualifiedly privileged” as the defendant asserts. Elmore v. R. R., 189 N. C., 658, 127 S. E., 710; Fields v. Bynum, 156 N. C., 413, 72 S. E., 449. The case was tried upon the defendant’s theory, which was more favorable to him than the plaintiff’s, thus leaving him without cause for complaint so far as the question of qualified privilege is concerned. ‍​‌‌‌‌‌​‌​​​​​​​‌‌‌‌​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌​​‌​​​​‌‍Undoubtedly, the publiсation was actionable, if untrue and not privileged, for it tended to expose the plaintiff to ridicule or scorn, and was calculated to injure her in her calling or profession. Penluff v. Park, 194 N. C., 146, 138 S. E., 616; Riley v. Stone, supra.

Finally, it is contended the action should be dismissed because no damage has been shown. The point is without merit. Plaintiff not only proved losses of a financial naturе, but she also established injury to her reputation and standing in the community as a result of the publication in question.' Her answer to this contention is one of philosophic paraphrase: “He who steals my purse steals trash, but he who robs me of my good name takes all that I have; takes that which enrieheth him *695 not, but imp over isbeth me.” Yerily, a good name is rather to be chosen than great riches. Prov. 22 :1.

The evidence is quite sufficient to carry the case to the jury, and in no view of it, could the motion to nonsuit have been allowed. Pentuff v. Park, supra; Ivie v. King, 167 N. C., 174, 83 S. E., 339; 17 R. C. L., 294.

A careful perusal of the record leavеs us with the impression that the case is free from reversible ‍​‌‌‌‌‌​‌​​​​​​​‌‌‌‌​​‌‌‌​‌‌​​​​​​‌‌‌​‌​‌​​‌​​​​‌‍error. The judgment of affirmance entered by the Superior Court will be upheld.

Affirmed.