Annotate this Case

85 S.E.2d 672 (1955)

241 N.C. 455


No. 675.

Supreme Court of North Carolina.

February 4, 1955.

*674 E. L. Alston, Jr., George A. Younce, Greensboro, and James Spence, Lillington, for plaintiff, appellant.

Brooks, McLendon, Brim & Holderness, Greensboro, for defendant, Greensboro News Co.

Hoyle & Hoyle, Greensboro, for defendant, Russell.

PARKER, Justice.

Plaintiff contends that he has alleged two causes of action, one for the recovery of actual damages for the publication of an alleged libelous news story in the Greensboro Daily News of 18 June 1952 as the result of an alleged conspiracy between the Greensboro News Company and L. R. Russell, and two for the recovery of punitive damages for the publication of the same news story as the result of the same alleged conspiracy. The allegations of the two alleged causes of action are substantially identical, except as to allegations of damages. In fact, plaintiff has alleged only one cause of action for the recovery of actual and punitive damages, because of the publication of an alleged libelous news story about him on 18 June 1952 by the defendants acting in pursuance of a conspiracy between them "to cause and bring about the defeat of plaintiff in the second primary, and that it did." Plaintiff alleges no cause of action against Russell for the charges made in the protest and challenge.

All the evidence as to what Russell did is as follows: He made and filed the protest and challenge, under oath, that plaintiff was not qualified to hold public office or to register and vote for the reasons he assigned, with the Guilford County Board of Elections. After the publication of the news story on 18 June 1952 plaintiff went to the office of the Greensboro Daily News, and talked to a Mr. Shepherd there, who was an employee of the Greensboro News Company. Plaintiff had the paper in his hand. This is the conversation between them: "I said, `Mr. Shepherd, I thought I told you not to print this in the paper.' `Well,' he said, `Mr. Manley,' he says, `The affidavit come in here' and he sayscan I say who he said brought it in there? Q. Yes, go right ahead and tell what he said. *675 A. He said, `L. R. Russell'I understood him to say, `He brought it in here.' (Objection to the foregoing question and answer by the defendant Russell sustained as to him.) And Shepherd said, `I didn't pay too much attention to what he (Russell) said because the FBI just arrested him (Russell) a few days ago for signing a communist petition.' But he says, `After I talked to him,' he said, `I went ahead and took it up with our lawyer and the lawyer said go ahead and print it,' and he said, `When the lawyer said go ahead and print it I went ahead and printed it.'"

When the reporter talked to plaintiff over the telephone about Russell's protest and challenge on 17 June 1952, he said he had talked to Russell, that he wanted to get plaintiff's side of it, he had already gotten Russell's.

The complaint contains no allegation of any relationship between the Greensboro News Company and Russell such as employer or employee, nor is there any evidence to that effect. Plaintiff's testimony that he understood Shepherd to say L. R. Russell brought the affidavit to the Greensboro News Company was not admitted in evidence against Russell, because it was clearly incompetent as to him. All that is left in evidence against Russell is that he executed under oath the protest and challenge, and filed it with the Guilford County Board of Elections, and a reporter of the Greensboro News Company and Shepherd talked to him about it. Surely that is no evidence at all that Russell had entered into a conspiracy with the Greensboro News Company, and in furtherance of said conspiracy the news story of 18 June 1952 was published in the Greensboro Daily News. As the evidence fails to show that Russell was a party to the alleged conspiracy, it follows that the Greensboro News Company was not a conspirator, because it could not conspire with itself. Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783. In Morrison v. People of State of California, 291 U.S. 82, 54 S. Ct. 281, at page 285, 78 L. Ed. 664, at page 671 Mr. Justice Cardozo speaking for the Court said: "It is impossible in the nature of things for a man to conspire with himself."

We are also of the opinion that there is no evidence that the Greensboro News Company entered into the alleged conspiracy.

This Court said in Rice v. McAdams, 149 N.C. 29, 62 S.E. 774: "We are not favored by plaintiff with any authorities which we think sustain his contention that a joint action may be maintained against two or more persons for words spoken, unless the defendants are connected by allegation and proof of a common design and purpose. As a general rule such an action cannot be maintained, for the words of one are not the words of the other. 25 Cyc. 434, and cases cited." See also Annotation, 34 A.L.R. 345; 53 C.J.S., Libel and Slander, § 159, p. 243.

The general rule is "that slander, unlike other torts, is an individual tort, incapable of joint commission, and that therefore two or more individuals uttering slanders against the same person cannot be held jointly liable, in the absence of a conspiracy between them, even though they utter the identical words simultaneously." Annotation, 26 A.L.R.2d 1032 et seq., where among the many cases cited is Rice v. McAdams, supra.

It is said in Annotation in 26 A.L.R.2d p. 1035 et seq.: "The major exception to the general rule is found in the generally accepted doctrine that persons uttering slanders in pursuance of a conspiracy to slander, and all other members of the conspiracy as well, may be held jointly liable." Among the many cases cited in support is Rice v. McAdams, supra.

"Generally a joint action may not be maintained against two or more persons for slander except where a common agreement or conspiracy is charged; where a libel is the joint act of several persons, they may be sued jointly or separately at *676 plaintiff's election." 53 C.J.S., Libel and Slander, § 159, p. 243.

The Supreme Court of Appeals of West Virginia said in Barger v. Hood, 87 W.Va. 78, 104 S.E. 280, 282: "The defendants contend that their demurrer should have been sustained because there is a misjoinder of defendants in the declaration. They argue that two or more persons cannot be joined in a suit for libel unless it is shown that the publication of the libel was the common or joint action of all of them. The authorities are clear that this is the law. 17 R.C.L. title, Libel and Slander, § 130."

The plaintiff has alleged a conspiracy, but there is a total failure of proof to sustain such allegation. Allegata without probata is insufficient. Both must concur to establish a cause of action. Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911.

"Plaintiff's recovery is to be had, if at all, on the theory of the complaint and not otherwise." Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470, 471. "If the petitioners are to succeed at all, they must do so on the case set up in their complaint." Sale v. Highway Commission, 238 N.C. 599, 78 S.E.2d 724, 729. It is familiar learning that where there is a total failure of proof to support the allegations of a complaint, a motion for judgment of nonsuit should be granted. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147.

The plaintiff contends that "if the plaintiff has not put on sufficient evidence of common design, the action could have been divided, but should not have been dismissed." The plaintiff cites in support of this contention what this Court said in Lewis v. Carr, 178 N.C. 578, 101 S.E. 97, 99, about Rice v. McAdams, supra: "In that case there was no common purpose or design shown, and the court said the action should have been divided, but that it would be error to dismiss it." In Rice v. McAdams the defendants were charged jointly with uttering different slanderous words. The contention is without merit, because as we have stated above plaintiff has stated one cause of action for one publication in pursuance of a conspiracy between the defendants to libel him. Russell's learned counsel has concisely said in his brief in replying to this contention of plaintiff: "The plaintiff in the case at Bar, seeks to discuss as error, the failure of the Judge to do what he was not asked to do; and to assign as error, a matter not based upon an exception taken below. He will not be permitted to do so."

The plaintiff did not request the trial judge to permit him to dismiss his action against Russell and to proceed against the Greensboro News Company. We will not consider this matter, since it is not presented by exception, and assignment of error duly entered. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609. The plaintiff decided to proceed to the end against both defendants. He is bound by his decision.

Plaintiff has offered no evidence that Russell took any part in the publication of the alleged libel, so Taylor v. Kinston Free Press Co., 237 N.C. 551, 75 S.E.2d 528, does not support plaintiff's contentions.

Plaintiff has based his action squarely upon the publication of an alleged libel in pursuance of an alleged conspiracy between the defendants to libel him. He has allegata, but not probata. That is fatal. The judgment of nonsuit was correctly entered. Aiken v. Sanderford, supra.


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