#### ROBERT McFARLAND v. NEWS and OBSERVER PUBLISHING COMPANY, INC.

(Filed 30 October 1963.)

1. Libel and Slander § 1; Torts § 2—

An individual making- a statement containing libelous matter to a newspaper and tbe newspaper publishing such matter are joint tort-feasors in publishing the libel.

2. Libel and Slander § 11; Torts § 7—

Where the party defamed institutes separate actions for libel against the individual making the statement and the newspaper publishing the defamatory matter, a release of the individual from liability is a release of the newspaper also, regardless of the -adequacy of the consideration paid for the release.

3. Pleadings § 30—

Where it appears upon the face of the pleadings that defendant was a joint tort-feasor in .publishing a libel and that plaintiff released the other *398tort-feasor, defendant’s motion for judgment on the pleadings should be allowed, since judgment on the pleadings is proper when all facts necessary to establish a plea in bar are either alleged or admitted in plaintiff’s ¡pleadings.

Appeal by plaintiff from *Parker, J.,*January, 1963 Civil Term, New HaNOvek Superior Court.

On December 13, 1960, tiie plaintiff instituted -this civi-l action against ¡tibe News and Observer Publishing Company (to recover actual and punitive damages based upon the following 'allegations:

“3. On or about the first day of November, 1960, one Clyde Patton mad© a statement to a reporter of the defendant that the plaintiff ¡was guilty of stealing timber belonging to the Wildlife Resources Commission.

“4. The defendant in its issue of November 2, 1960, published said charge of stealing timber, and stated:

“ ‘A Wildlife Commission report on the case against the five men quoted Burney .as saying 'his reason for requesting a *nol pros*was that the .case was “not one .thing 'in the world but a land squabble ¡between the State and some private individuals and ¡ought to. be tried in .civil court.”

“ ‘Wildlife Resources Director Clyde Patton differed sharply with Burney’s contention that -the first case was nothing more than “a land (squabble. They were 'actually (stealing ¡our timber,” Patton said.

“ ‘On April 22nd Holly Shelter refuge managers discovered five men cutting timber on the 40,000-acre tract. The five, identified as Grant Holliday, Harry Blandiing, Noah Brailsford, Robert McFarland and Arthur Bannerman, ware arrested .and charged with trespassing, cutting and stealing timber valued at over $50.

“ ‘On September 26 Burney took the *nol pros . .*

“5. Said publication charging plaintiff with stealing was false, malicious and defamatory, and accused the plaintiff of being a thief, and with being guilty of a crime.”

By answer, the defendant admitted it published .the news story complained of upon the 'basis of information given to its reporter .by Mr. Clyde Patton, Director of the North Carolina Wildlife Resources ■Commission, upon a matter arising in the course and ¡scope of his official duties; ¡that the publication involved ¡a matter of public concern, and' the publication was in good faith ¡and without malice.

*399By way of amendment -to the answer, and as a further defense, the defendant alleged:

“1. On the 10th day of November, 1960, Robert MeFarlaod, the plaintiff .in 'the present action, commenced a civil action against Clyde Patton for the recovery of damages alleged to- have been sustained by the plaintiff Robert McFarland; and in 'the complaint filed ■» the said civil action against Clyde Ba/tton in the Superior Court of New Hanover County, North Carolina, the plaintiff Robert McFarland alleged that on or about the 1st day of November, I9601, the defendant Clyde Patton falsely and maliciously charged that the plaintiff Robert McFarland was guilty of stealing and ‘made said charge and defamatory statement to a reporter of the News and Observer, a ¡newspaper of large and general circulation in the State and elsewhere, intending for it ¡k> be published in said newspaper, .and maliciously stated in substance that plaintiff was a thief, ¡and falsely accused the plaintiff of being a thief, and of stealing timber belonging to the North Carolina Wildlife Resources Commission.’ And in said complaint in ©aid civil action against Clyde Patton, the plaintiff Robert McFarland alleged: ‘And the said News and Observer published in North Carolina, published said false and defamatory statements in its issue of November 2, I960, on pages 1 and 2, after naming plaintiff and four others, Clyde Patton stated “they were actually stealing timber.” ’ ”

The plaintiff, by reply -to the further defense, said that Article 1 of the amendment to the answer is admitted. As a fourth further defense, the defendant alleged the plaintiff made a voluntary settlement with, and obtained complete satisfaction from, Clyde Patton of all damages arising out of the charges and the publication thereof referred to above, and executed the following release:

“Know all men by these presents:

“That I, Robert McFarland of the County of New Hanover and State of North Carolina, that for and in the ¡consideration of One ($1.00) Dollar of United States currency to him in- hand paid by Clyde Patton of the City of Raleigh, the County of Wake and the State of North Carolina, does by these presents release and discharge the said Clyde Patton of and from 'any, and all manner of action, causes of action, judgments, execution, debts, dues, claims, damages and demands of every kind .and nature whatsoever which are against the said Clyde Patton, he ever had or now has or which *400be or bis heirs, executors or .administrators have mow or may 'hereafter have by reason of the statement alleged to’ be libelous as set forth in the Complaint in this cause of action.

“IN WITNESS WHEREOF, Robert McFarland has hereunto set bis hand and seal .this the 11th day of September, 1962.

“S/Robert McFarland (SEAL) .”

By reply to. the amendment setting up the fourth further defense, the plaintiff stated:

“Further 'answering this article of the amendment to- the answer, the plaintiff -admits the execution of Exhibit C thereto- attached and therein -referred to.”

The -plaintiff alleged and the -defendant admitted -demand for retraction and its denial.

The defendant filed -a written motion for judgment on -the pleadings. After hearing, the court dismissed the action upon the ground the plaintiff’s pleadings at most disclosed a joint tort committed by Clyde Patton -and by the present defendant; and the plaintiff’s release of Patton likewise released this joint tort-feasor.

The plaintiff excepted and -appealed.

*Rountree & Clark, by George Rountree, Jr., Isaac C. Wright for plaintiff appellant.*

*Poisson, Marshall, Barnhill and Williams, by Alan A Marshall, Lassiter, Leager, Walker and Banks by Wm. C. Lassiter for defendant appellee.*

HiggiNS, J.

According to the allegations and admissions in the pleadings, Mr. Patton, Director of the North Carolina Wildlife Resources Commission, and Mr. McFarland, the plaintiff in this -action, became involved in -a controversy concerning the right of the latter to remove timber from certain lands which Mr. Patton -claimed belonged to -the State agency of which 'he was Director. Warrants were issued charging the plaintiff -and others with trespassing on the lands of the Commission and taking, stealing, and carrying .away 60 logs, more or lesis, belonging to the State, valued at more than $50.00. The defendants in the warrant were bound over to the Pender County Recorder’s Court for tria-l. Upon demand for a trial by jury the case was removed to the Superior Court of Pender County.

In the Superior Count the solicitor for the -State entered a *nol pros*with leave, staring the controversy involved the title to- land and ought *401to be tried in .the civil court. Mr. Patton, being dissatisfied with the .action of .the solicitor in .dismissing the case against the plaintiff, contacted the reporter for the -defendant and gave out the story which forms the .basis of the cause of action here alleged. The .defendant published the story. The plaintiff filed separate suits against Mr. Patton and against the defendant.

> “It is well .settled that all who take part in the publication of a libel or who .procure or command libelous matter to. be published may be sued by the person defamed either jointly or severally.” *Bell v. Simmons,*247 N.C. 488, 101 S.E. 2d 383.

> “That -the publication of a libel causing injury to. the person defamed is a civil wrong and is embraced within the category of torts may not be gainsaid, .and it follows that all those who. join in .the publication . . . must be regarded in law as joint tort-feasors . . .” *Taylor v. Press Co.,*237 N.C. 551, 75 S.E. 2d 528.

> “There may be responsibility for publication by another, a® in .the case of . . . (agency) or an express or implied authorization to. publish, as where a statement is made to a newspaper .reporter.” Prosser, Law of Torts, 2d Ed., § 94, p. 600; *Clay v. People,*86 Ill. 147.

> “In North Carolina the consequence of participation in the publication of a libel is joint liability for damages . . .” 41 N.C.L.R. 522.

The release of Patton operated as a release of the News and Observer Publishing Compiany. “Moist of the counts have continued to hold that a release .to one of two .concurrent tont-feasors is a complete surrender1 of any cause of action against the other1, without regard to the isufiioiency of the compensation actually received.” Prosser on Torts, 2d Ed., § 46, p. 243.

> “A valid release of one joint tort-feasor releases all the joint wrongdoers and is a bar to a -suit against any of them for the same injury, for the injured person is entitled to- but one satisfaction .and the ¡release operates to. extinguish the cause of action.” (citing authorities) *Simpson v. Plyler,*258 N.C. 390, 128 S.E. 2d 843.

All facts necessary to establish the plea in bar are either alleged or admitted 'in the plaintiff’s pleadings. Heooe it became the court's duty to pass on the plea as a matter of law. Judgment sustaining the plea is in accordance with the .authorities controlling in this State. This disposition makes it unnecessary to discuss or consider any of the other defenses interposed.

Affirmed.