Beane v. Weiman Co.

168 S.E.2d 236 (1969)

5 N.C. App. 276

Sarah G. BEANE v. WEIMAN COMPANY, Inc., Louis J. Galvan, individually, George Fricella, individually, and Richard Goddard, individually.

No. 6919SC265.

Court of Appeals of North Carolina.

July 2, 1969.

*237 Alston, Pell, Pell & Weston, by E. L. Alston, Jr., Jerry Weston, Greensboro, for plaintiff appellant.

Block, Meyland & Lloyd, by A. L. Meyland, Greensboro, for defendant appellees.

BRITT, Judge.

It is noted in the record on appeal and in the briefs that defendant Galvan is variously referred to as Louis J. Galvan, James J. Galvin, Lou Galvan, Lewis J. Galvin, Louis J. Galvin, Galvan, and Galvin; we proceed on the assumption that his correct name is Louis J. Galvan.

The question presented is whether the allegations of the complaint are sufficient to state a cause of action.

Slander is commonly defined as "the speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood." 33 Am.Jur., Libel and Slander, § 3, p. 39. 53 C.J.S. Libel and Slander § 1, p. 33; Black's Law Dictionary, 4th Ed. Slander, as distinguished from libel, may be actionable per se or only per quod. That is, the false remarks in themselves (per se) may form the basis of an action for damages, in which case both malice and damage are, as a matter of law, presumed; or the false utterance may be such as to sustain an action only when causing some special damage (per quod), in which case both the malice and the special damage must be alleged and proved. 5 Strong, N.C.Index 2d Libel and Slander, § 1, pp. 204-205. Penner v. Elliott, 225 N.C. 33, 33 S.E.2d 124.

In Penner v. Elliott, supra, the defamatory language complained of was: "J. R. Penner is a man who will not pay his honest debts; that he will not work and is a man that respectable people had best not have anything to do with." In an opinion by Seawell, J., the court said:

"The policy of the law has much restricted the range of defamatory utterances which are actionable per se. Some statutes, with which we are not here concerned, make a limited number of defamations slanderous per se; but ordinarily we must look to the history of the subject in the common law, under the guidance of our own decided cases, in order to determine which are of that character. Included amongst them are accusations of crime or offenses involving moral turpitude, defamatory statements about a person with respect to his trade, occupation or business, imputations of having a loathesome disease, and the like. It is sufficient to say that the words alleged of the defendant do not come within any of the categories recognized as actionable per se; * * *."

We hold that the words alleged in the instant case are not actionable per se.

Where the injurious character of the words do not appear on their face as a matter of general acceptance, but only in consequence of extrinsic, explanatory facts *238 showing their injurious effect, such utterance is actionable only per quod. Where the words spoken or written are actionable only per quod, the injurious character of the words and some special damage must be pleaded and proved. 5 Strong, N.C. Index 2d, Libel and Slander, § 4; Badame v. Lampke, 242 N.C. 755, 89 S.E.2d 466.

In her complaint, plaintiff alleges as a fact that, for approximately two years prior to the occasion complained of, defendants Galvan and Fricella openly and notoriously associated with women other than their wives; that their wrongful conduct was carried on at Weiman's place of business and in other places in Randolph County. She then alleges on information and belief that some person called the "wife of Galvan and/or Fricella" in Illinois and advised her or them of the improper associations of Galvan and Fricella with "other women"; that said defendants falsely accused plaintiff of being the person who made the telephone call and as the result of said false accusation plaintiff lost her job with Weiman and had been unable to obtain equally satisfactory employment elsewhere. She contends that the false accusation by Galvan and Fricella and repeated by Goddard "was intended to convey and did convey * * * the impression that the plaintiff was an untrustworthy person, not fit to hold a job of confidence, and the same was calculated to, and did, hold the plaintiff up to public scorn, hatred and ridicule * * *."

We do not think the complaint alleges sufficient facts showing injurious effect of the words complained of to render them actionable per quod.

The judgment of the superior court sustaining the demurrer to the complaint is

Affirmed.

MALLARD, C. J., and PARKER, J., concur.