{
  "id": 8627980,
  "name": "CLARENCE H. DAVIS, by His Next Friend, B. O. DAVIS, v. ASKIN'S RETAIL STORES, INCORPORATED, and GEORGE LEFLER",
  "name_abbreviation": "Davis ex rel. Davis v. Askin's Retail Stores, Inc.",
  "decision_date": "1937-04-28",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "CLARENCE H. DAVIS, by His Next Friend, B. O. DAVIS, v. ASKIN\u2019S RETAIL STORES, INCORPORATED, and GEORGE LEFLER."
    ],
    "opinions": [
      {
        "text": "DeviN, J.\nThe sufficiency of the complaint is challenged by the demurrer on two grounds: (1) That the writing complained of is not libelous per se and contains no averment of special damage, and (2) that the complaint shows there was no publication of the alleged libel by the defendants.\n1. The distinction between oral and written defamation is well recognized. To determine whether the particular words used are actionable per se, it is necessary to apply a different rule in case of libel from that applicable to slander.\nIn Simmons v. Morse, 51 N. C., 7, it was said: \u201cA libel, as applicable to individuals, has been well defined to be a malicious publication, expressed either in printing or writing, or by signs, or pictures, tending either to blacken the memory of one dead or the reputation of one alive, and expose him to public hatred, contempt, or ridicule. . . . Any written slander, though merely tending to render the party liable to disgrace, ridicule, or contempt, is actionable, though it do not impute any definite infamous crime.\u201d 36 C. J., 1152; Brown v. Lumber Co., 167 N. C., 9; Hall v. Hall, 179 N. C., 571; Alexander v. Vann, 180 N. C., 187; Hedgepeth v. Coleman, 183 N. C., 309; Pentuff v. Park, 194 N. C., 146.\nIn Paul v. Auction Co., 181 N. C., 1, Hoke, J., uses this language: \u201cIt is fully recognized that in order to constitute a libel it is not necessary that the publication should impute the commission of crime, infamous or otherwise, but the charge is established when a false publication is made, holding one up to public hatred, obloquy, contempt, or ridicule.\u201d\nIn Pentuff v. Park, supra, Clarkson, J., quotes with approval from Newell on Slander and Libel, as follows: \u201cEverything printed or written which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been. . . . The words need not necessarily impute disgraceful conduct to the plaintiff; it is sufficient if they render him contemptible or ridiculous.\u201d\n\u201cDefamatory words, when spoken, are ordinarily not actionable per se unless they impute a crime; but written or printed words are actionable when they subject a person to disgrace, ridicule, odium, or contempt in the estimation of friends and acquaintances, or the public.\u201d 17 R. C. L., 263; Foster-Milburn v. Chinn, 134 Ky., 424.\nThe written words complained of charged the plaintiff in part as follows: \u201cBy removing property which does not belong to you, you have violated the laws of this city and State, and by so doing you have made yourself liable to prosecution. This law was passed for the protection of merchants against people who willfully convert to their own use merchandise sold to them under lease. . . . Unless we hear from you within 3 days we will have to turn the whole matter over to the proper authorities for whatever action is prescribed by the law.\u201d\nIn accord with the pertinent principles of the law of libel as set forth in the adjudicated cases and stated by text-writers, this written language must be held libelous and actionable without averment of special damages.\n2. Does the complaint sufficiently allege that the defendants were responsible for the publication of the libelous matter complained of? Under the rule stated by Adams, J., speaking for the Court in Hedgepeth v. Coleman, 183 N. C., 309, this question must be answered in the affirmative. In the Hedgepeth case, supra, the facts were similar to those in the case at bar. It was there said: \u201cIn the letter referred to there is a threat of prosecution. When it was received, the plaintiff was between fourteen and fifteen years of age, and his youth was known to the defendant. With the knowledge of the plaintiff\u2019s immaturity, of the character of the accusation and menace contained in the letter, of the probable emotion of fear, and the impelling desire for advice on the part of the plaintiff, the defendant must have foreseen the plaintiff\u2019s necessary exposure of the letter as the natural and probable result of the libel.\u201d\nThe facts alleged in the complaint are sufficient to constitute a cause of action, and the demurrer was properly overruled.\nAffirmed.",
        "type": "majority",
        "author": "DeviN, J."
      }
    ],
    "attorneys": [
      "Carswell & Ervin for plaintiff, appellee.",
      "Fred B. Helms for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "CLARENCE H. DAVIS, by His Next Friend, B. O. DAVIS, v. ASKIN\u2019S RETAIL STORES, INCORPORATED, and GEORGE LEFLER.\n(Filed 28 April, 1937.)\n1. Libel and Slander \u00a7 2 \u2014 Libelous words are actionable per se if they subject person to disgrace, ridicule, odium, or contempt.\nThe rule determining whether words used in a libel are actionable per se is different from the rule applicable to actions for slander, and libelous words are actionable per se when they subject a person to disgrace, ridicule, odium, or contempt in tlie estimation of friends and acquaintances or the public, and it is not necessary that they impute a crime.\n2. Same \u2014 Letter declared on in this case held libelous per se.\nA letter imputing that plaintiff had wrongfully removed merchandise not belonging to him from the State in violation of a criminal statute, and stating that if pajunent were not immediately made defendants would assume that the violation of the statute was intentional and would turn the matter over to the authorities for action prescribed by law, is held libelous and actionable without averment of special damages.\n3. Libel and Slander \u00a7 4 \u2014 Complaint held to allege defendants\u2019 responsibility for publication of libelous letter.\nThe complaint alleged that defendants mailed to plaintiff, then seventeen years of age, a letter containing language which, on account of plaintiff\u2019s inexperience and youth, would cause him to believe he was threatened with criminal prosecution, that plaintiff showed the letter to others and that defendants knew that plaintiff, by reason of his youth, and fear which the letter would engender, would show the letter to others for advice as a natural and probable result of defendants\u2019 wrong. Reid: The complaint sufficiently alleges that defendants were responsible for the publication of the libelous matter complained of.\nAppeal by defendants from Gowper, Special Judge, at November Term, 1936, of MeckleNbueg.\nAffirmed.\nCivil action for libel. The complaint alleges tbat the plaintiff, then 17 years of age, received through the mail from the defendants the following false and libelous communication: \u201cCollection Department, Askin\u2019s \u2014 Clothing for the Family. Dear Customer: We have just learned through our special investigator that you have left the city and State with merchandise which was leased to you under a signed contract. By removing property which does not belong to you, you have violated the laws of this city and State, and by so doing you have made yourself liable to prosecution. This law was passed for the protection of merchants against people who willfully convert to their own use merchandise sold to them under lease. We do not know whether you intended to evade this obligation by leaving the city, or not, but we will have to arrive at that conclusion unless you settle the account at once. Naturally we would prefer to have you settle this account without any trouble, but unless we hear from you within three days, we will assume that it is not your intention to pay, and we will then have to turn the whole matter over to the proper authorities, for whatever action is prescribed by the law. Yery truly yours, Askin\u2019s. Geo. Lefler, Mgr.\u201d\nIt was further alleged that the plaintiff, an inexperienced youth, believing he was threatened with prosecution for a criminal offense, naturally consulted others and exhibited the communication to them, and tbat tbe defendants knew that the plaintiff, by reason of his youth and under the emotion of fear, would divulge the contents of the letter to others as a natural and probable result of defendants\u2019 wrongful act.\nThe defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, for that the writing quoted was not libelous per se, and no special damages were alleged; and also that it appeared in the complaint that the alleged libel was published by the plaintiff himself and not by defendants.\nThe demurrer was overruled, and defendants excepted and appealed.\nCarswell & Ervin for plaintiff, appellee.\nFred B. Helms for defendants, appellants."
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  "file_name": "0551-01",
  "first_page_order": 617,
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