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201 S.E.2d 503 (1974)

20 N.C. App. 340


No. 732SC778.

Court of Appeals of North Carolina.

January 9, 1974.

Certiorari Denied March 5, 1974.

*506 Wilkinson, Vosburgh & Thompson by John A. Wilkinson, Washington, for plaintiff appellant.

Hutchins & Romanet by Andrew L. Romanet, Jr., and R. Wendell Hutchins, Plymouth, for defendant appellees.

Certiorari Denied by Supreme Court March 5, 1974.


By his first assignment of error plaintiff contends (a) that the trial court erred in failing to make the defendants elect between the defenses of privilege and nonutterance and (b) that the trial court also erred in failing to require the defendants to state, prior to the presentation of the evidence, whether they were relying upon truth as a defense or were abandoning that defense. Plaintiff in part (a) of this assignment of error does not dispute the fact that defendant can plead alternative, inconsistent defenses but rather he maintains that defendant must make an election between the two defenses prior to trial. We cannot agree with this approach. G.S. § 1A-1, Rule 8(e)(2), Rules of Civil Procedure, declares in part:

"A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both . . . ."

If we were to accept the argument proffered by plaintiff, what possible significance would G.S. § 1A-1, Rule 8(e)(2), Rules of Civil Procedure, have? Obviously, adherence to plaintiff's viewpoint would render Rule 8(e)(2) meaningless, as we would be placed in the incongruous position of saying that you can plead inconsistent defenses but you cannot prove the same.

*507 The second segment of plaintiff's first assignment of error is bottomed upon plaintiff's contention that the uncertainty as to whether he would be confronted by the defense of truth forced him during the course of the entire trial, at great expense, to keep in court the head of the State Hospital from Madison, Indiana. Also, plaintiff claims that because of the inability to ascertain whether truth would be a defense, the trial judge allowed the evidence to wander almost endlessly in a maze. As in our discussion of the first portion of this assignment of error, we also find this argument to be without merit. This challenge requires that reference be made to G.S. § 1A-1, Rule 9(i)(2), Rules of Civil Procedure, which reads as follows:

"The defendant may in his answer allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and whether he proves the justification or not, he may give in evidence the mitigating circumstances." (emphasis added)

Clearly, this statute does not require the defendant to reveal whether he intends to prove the defense of truth, and in fact, the latter portion of this Rule allows the defendant to plead and prove truth and/or other mitigating circumstances. For the reasons stated above this assignment of error is overruled.

Many of the 85 assignments of error discussed in the plaintiff's brief concern the admission or exclusion of evidence by the trial court. By agreement of the parties, this case was heard by the presiding judge without a jury, and "in a trial before the judge without a jury, the ordinary rules as to the competency of evidence which are applicable in a jury trial are to some extent relaxed, since the judge with knowledge of the law is able to eliminate incompetent and immaterial testimony, but if incompetent evidence is admitted the presumption arises that it was disregarded and did not influence the judge's findings." 7 Strong, N.C. Index 2d, Trial, § 57, p. 377. Upon completion of the presentation of the evidence, the trial judge properly made findings of fact and conclusions of law. A careful review of the record does not affirmatively disclose that the trial judge's findings were influenced by the admission of any evidence which might possibly be termed incompetent and, furthermore, each of the facts found is supported by competent evidence and thus binding upon this court. Mayo v. Casualty Co., 282 N.C. 346, 192 S.E.2d 828 (1972); Vaughn v. Tyson, 14 N.C.App. 548, 188 S.E.2d 614 (1972).

Next, we must consider whether the facts found support the conclusions of law entered by the court. First, there are sufficient findings of fact to support the conclusion that defendant Finger made no defamatory utterances with regard to plaintiff. Turning to the conclusion made concerning the letter set from defendant Jeffers to plaintiff, we are of the opinion that the court was correct in determining the letter to be libelous per se but qualifiedly privileged. "The decisions in this jurisdiction, as well as others, clearly establish that a publication is libelous per se, or actionable per se, if when considered alone without innuendo: * * * (4) it tends to impeach one in his trade or profession." Flake v. News Co., 212 N.C. 780, 787, 195 S.E. 55, 60 (1937). Liability for such defamatory statements can be avoided if the remarks are afforded the protection of absolute or qualified privilege. The statement made by the defendant Jeffers, although found to be libelous per se, was qualifiedly privileged because the statement was made in the corporate interest. A recent N. C. Supreme Court decision, Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971), quoted with approval the following passage from 50 Am.Jur.2d, Libel and Slander, § 195 (1970): "A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest . . . ." See *508 Also, Prosser, Law of Torts, § 115, pp. 789-790 (4th ed. 1971); Annot. 98 A.L.R. 1301 (1935). Although a qualified privilege may provide an affirmative defense against a defamation action, if the qualified privilege is found to be abused, then the privilege ceases to exist. The qualified privilege may be lost by proof of actual malice on defendant's part or excessive publication by the defendant. The trial judge properly concluded, based on the facts found, that the qualified privilege in this case was not waived by a showing of actual malice or excessive publication. Finally, we agree with the trial court's conclusions that the remarks made by the defendant Jeffers to his neighbor were not slanderous and also that defendant corporation has not been shown to have defamed, slandered, or libeled the plaintiff.

The judgment appealed from is


MORRIS and VAUGHN, JJ., concur.

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