{
  "id": 8553197,
  "name": "JAMES T. BLACKMON, SR., Plaintiff v. VALLEY DECORATING COMPANY, INC., Et Al, Defendants v. VAUGHN'S, INC., Third Party Defendant",
  "name_abbreviation": "Blackmon v. Valley Decorating Co.",
  "decision_date": "1971-04-28",
  "docket_number": "No. 7126SC189",
  "first_page": "137",
  "last_page": "140",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "year": 1970,
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      "reporter": "N.C. App.",
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      "year": 1970,
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      "cite": "223 N.C. 470",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1943,
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  "last_updated": "2023-07-14T15:10:46.806740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Campbell and Graham concur."
    ],
    "parties": [
      "JAMES T. BLACKMON, SR., Plaintiff v. VALLEY DECORATING COMPANY, INC., Et Al, Defendants v. VAUGHN\u2019S, INC., Third Party Defendant"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDid the trial judge commit error in granting Vaughn\u2019s motion for summary judgment and dismissing the counterclaim as to Vaughn\u2019s with prejudice? We answer in the negative.\nPertinent allegations of the counterclaim are as follows:\n2. During November, 1969, in Belk\u2019s Stores in the City of Concord, North Carolina, the Plaintiff, acting as the authorized agent of Vaughn\u2019s, Inc., in the presence and hearing of one Harold Knowles, maliciously spoke of and concerning the Defendants, the statement that the Defendants were no longer in business and were a defunct corporation and, further, in the presence and hearing of one David S. Beaman of Troy, North Carolina, maliciously uttered the false and defamatory words that the Defendants were now out of business and further that the Defendants were dishonest in their business dealings.\n3. The words so spoken were false and defamatory.\nOn 13 April 1970 Vaughn\u2019s filed an affidavit of its President, LeRoy F. Vaughn, setting forth its contentions as to plaintiff\u2019s status with Vaughn\u2019s. Among other things, the affidavit alleged:\nMr. Blackmon, as a sales representative or as an independent contractor, had no authority to act or speak for the Company. His only limited authority was to solicit orders for the sale of certain of the Company\u2019s products, and even this authority was subject to the approval of the Company.\nThe Company has no knowledge of the statement attributed to Mr. Blackmon as set out in the Counterclaim of the original defendants. Mr. Blackmon had no actual authority, express or implied, to utter such statements, if he did, as an agent for the Company. Nor did Mr. Black-mon have any apparent authority to speak for the Company, if he did, in such a manner. The statements attributed to Mr. Blackmon were not spoken, if they were, within the scope of any employment of Mr. Blackmon by the Company. Nor did such statements, if spoken by Mr. Blackmon, serve to further the business of the Company. In addition, the Company has never ratified nor intended to ratify the alleged statements of Mr. Blackmon.\nValley introduced no evidence to contradict the portion of the Vaughn affidavit above quoted or to supplement the allegations of its counterclaim first above quoted.\nTo sustain its counterclaim (or cross action) against Vaughn\u2019s at trial, the burden would be on Valley to show that at the time and in respect to the utterance of the words complained of plaintiff was acting within the course and scope of his employment by Vaughn\u2019s. Gillis v. Tea Company, 223 N.C. 470, 27 S.E. 2d (1943). In Patterson v. Reid, 10 N.C. App. 22, 178 S.E. 2d 1 (1970), Parker, Judge, speaking for this court said:\nThe motion for summary judgment under Rule 56 of the Rules of Civil Procedure (G.S. 1A-1, Rule 56) is a procedure new to the courts of this State. (For an excellent discussion of the history and purpose of the summary judgment procedure, see opinion by Judge Morris in Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E. 2d 425.) The purpose of the rule is not to resolve a disputed material issue of fact, if one exists, but to provide an expeditious method for determining whether any such issue does actually exist. The rule provides that \u201c[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d Rule 56 (c). When motion for summary judgment is made, the court must look at the record in the light most favorable to the party opposing the motion. Crest Auto Supplies, Inc. v. Ero Manufacturing Company, 360 F. 2d 896 (7th Cir., 1966). However, when the motion is supported as provided in the rule, \u201can adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\u201d Rule 56(e). (Emphasis added.)\nIn our opinion, at the hearing on its motion for summary judgment, Vaughn\u2019s by the affidavit of its president sufficiently met its burden of proof. Nothing else appearing, Vaughn\u2019s would be entitled to a directed verdict at trial. The counterclaim alleges that plaintiff was in Belk\u2019s Stores in Concord when he made the remarks complained of but there is nothing to show that plaintiff was \u201cabout his master\u2019s business\u201d at the time. The unsupported allegations in the counterclaim are not sufficient to overcome the motion for summary judgment. Pridgen v. Hughes, supra.\nIn view of our holding that the trial judge properly sustained the motion of Vaughn\u2019s for summary judgment, thereby terminating with prejudice the counterclaim as to Vaughn\u2019s, we deem it unnecessary to discuss the other questions posed in the briefs.\nFor the reasons stated, the judgment sustaining Vaughn\u2019s motion for summary judgment and dismissing with prejudice the counterclaim as to Vaughn\u2019s is\nAffirmed.\nJudges Campbell and Graham concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Garland, Alala, Bradley & Gray by Charles D. Gray, III, attorneys for defendant-appellant, Valley Decorating Company, Inc., et al.",
      "James & Williams by William K. Diehl, Jr., attorneys for Vaughn\u2019s, Inc., additional party defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JAMES T. BLACKMON, SR., Plaintiff v. VALLEY DECORATING COMPANY, INC., Et Al, Defendants v. VAUGHN\u2019S, INC., Third Party Defendant\nNo. 7126SC189\n(Filed 28 April 1971)\n1. Corporations \u00a7 27; Libel and Slander \u00a7 13; Master and Servant \u00a7 34\u2014 liability of corporation for slander \u2014 burden of proof\nIn order to sustain its counterclaim against a corporation for slander by an alleged employee of the corporation, defendant would have the burden of showing that at the time and in respect to the utterance of the words complained of the alleged employee was acting within the course and scope of his employment by the corporation.\n2. Corporations \u00a7 27; Libel and Slander \u00a7 16\u2014 slander \u2014 remarks by salesman\u2014 summary judgment for salesman\u2019s employer\nThe trial court properly allowed motion of corporate third party defendant for summary judgment on counterclaim by defendant based on alleged slanderous remarks of plaintiff salesman, where third party defendant introduced an affidavit of its president that plaintiff had no authority to make the remarks complained of as an agent for the company and was not acting within the scope of his employment when the remarks were made, and defendant offered no evidence to contradict the affidavit or to supplement the allegations of its counterclaim.\nAppeal by original defendants from Fountain, /., 2 November 1970 Session, Mecklenburg Superior Court.\nOn 15 December 1969 plaintiff instituted this action against the original defendants (Valley) to recover commissions allegedly earned by plaintiff on sales of Valley\u2019s decorative materials. Valley counterclaimed against plaintiff and Vaughn\u2019s, Inc., a Minnesota corporation (Vaughn\u2019s), alleging that plaintiff while working for Vaughn\u2019s made slanderous remarks against Valley. An order was entered making Vaughn\u2019s an additional party defendant.\nThereafter, Vaughn\u2019s filed a motion asking the court: (l)to dismiss the action alleged in the counterclaim as to it because the counterclaim failed to state a claim against Vaughn\u2019s upon which relief could be granted; (2) to quash the return of service of summons because the court did not have jurisdiction; and (3) to treat the motion and supporting affidavit as a motion for summary judgment.\nFollowing a hearing on the motion, the trial court found facts as contended by Vaughn\u2019s, and, among other things, sustained its motion for summary judgment and dismissed the counterclaim as to Vaughn\u2019s with prejudice. Valley appealed.\nGarland, Alala, Bradley & Gray by Charles D. Gray, III, attorneys for defendant-appellant, Valley Decorating Company, Inc., et al.\nJames & Williams by William K. Diehl, Jr., attorneys for Vaughn\u2019s, Inc., additional party defendant appellee."
  },
  "file_name": "0137-01",
  "first_page_order": 161,
  "last_page_order": 164
}