Gillikin v. Bell

118 S.E.2d 609 (1961)

254 N.C. 244

C. T. GILLIKIN, Administrator of Louie Elmer Gillikin, Deceased, and Next of Kin to Louie Elmer Gillikin, Deceased, v. Gene BELL.

No. 98.

Supreme Court of North Carolina.

March 8, 1961.

*610 Charles L. Abernethy, Jr., New Bern, for plaintiff-appellant.

Claud R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant-appellee.

RODMAN, Justice.

If, as alleged, defendant with the intent to prevent plaintiff from recovering damages for the wrongful death of his intestate, took pictures falsely depicting conditions at the wreck and knowingly used or permitted the use of such pictures in the trial of plaintiff's action, he would be guilty of perjury or subornation of perjury. This conduct would support criminal prosecution but would not create civil liability. Gillikin v. Springle, N.C., 118 S.E.2d 611.

We do not understand from our reading of the complaint that plaintiff intends to allege a wrongful act done to the body, but if he does intend to assert some such right of action, it is barred by the statute of limitations, G.S. § 1-52(5). The collision occurred 2 July 1956. This action was begun 20 August 1959. Since the bar appears from the pleadings, the court could properly dismiss the action. Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112.

But plaintiff does not limit his right to recover to these allegations. He also seeks to recover because of "scurrilous and defamatory pictures which tended to reflect upon" deceased, which pictures were "distributed and exhibited * * * throughout Carteret County with the wicked and evil intent of casting aspersions and indignities upon the deceased."

Chancellor Kent defined libel as a malicious publication tending to blacken the memory of one dead or the reputation of one alive. This definition of a libel has been referred to with approval by this Court in several cases. Simmons v. Morse, 51 N.C. 6; Davis v. Askin's Retail Stores, Inc., 211 N.C. 551, 191 S.E. 33; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55. It is the definition most frequently used in defining libel. 33 Am.Jur. 38; 53 C.J.S. Libel and Slander § 1, p. 32.

Since a libel is apt to create a breach of the peace, it is a common law crime. 33 Am.Jur. 291; 53 C.J.S. Libel and Slander § 281, p. 409; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1468, with annotations. It has been recognized as such by us. State v. Powers, 34 N.C. 5; State v. Townsend, 86 N.C. 676; State v. Lyon, 89 N.C. 568; State v. McIntire, 115 N.C. 769, 20 S.E. 721. The common law, except as modified by statute, is in force in this State. G.S. § 4-1; State v. Hampton, 210 N.C. 283, 186 S.E. 251. The Legislature has enlarged the class of things which are criminal because defamatory. G.S. §§ 14-47, 14-48.

"It is a misdemeanor at common law, punishable on indictment with fine and imprisonment, to write and publish defamatory matter of any person deceased, provided it be published with the malevolent purpose to injure his family and posterity, and to expose them to contempt and disgrace; for the chief reason of punishing offenses of this nature is their tendency to a breach *611 of the peace. And although the party be dead at the time of publishing the libel, yet it stirs up others of the same family, blood or society to revenge and to break the peace." Newell, Slander and Libel, 4th ed., p. 931.

Not all criminal acts gave a right of action for damages at common law. The wrongful killing of a human being, even though criminal, gave no right of action until the enactment of Lord Campbell's Act. G.S. § 28-173. We have never been called upon to determine whether a right of action existed for damages for the defamation of a dead person, but since, as noted, the common law applies in North Carolina except as amended by statute, we turn to common law to ascertain if it afforded such a right of action. The cases are practically unanimous in holding that no such right existed. Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732, with annotations, 739; Rose v. Daily Mirror, 284 N.Y. 335, 31 N.E.2d 182, 132 A.L.R. 888; Kelly v. Johnson Publishing Company, 160 Cal. App. 2d 718, 325 P.2d 659; Hughes v. New England Newspaper Publishing Co., 312 Mass. 178, 43 N.E.2d 657; 33 Am. Jur. 42; 53 C.J.S. Libel and Slander § 11, p. 53.

The Legislature has the power to modify the common law and permit an action for damages for defamation of a dead person, designating the person who may sue and how the sums recovered shall be distributed. Until the Legislature authorizes such actions, we feel impelled to adhere to the common law denying a right of action. Manifestly the Legislature has not been inadvertent to the law of libel. Illustrative of the attention which it has given to the subject, see c. 99 of the General Statutes, G.S. §§ 28-175, 14-47, 14-48, and 14-401.3.

Plaintiff makes no attempt to allege an invasion of his right of privacy. Bremmer v. Journal-Tribune Publishing Company, 247 Iowa 817, 76 N.W.2d 762; Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286.

Since plaintiff has not alleged a cause of action not barred by the statute of limitations, the court properly dismissed the action.

Affirmed.