#### HARRY ROTH v. GREENSBORO NEWS COMPANY.

(Filed 2 February, 1940.)

1. Libel and Slander § 13 — Evidence held sufficient to be submitted to jury on question oí whether words libelous per se were spoken oí and concerning plaintiff.

The evidence disclosed that a person of a certain name was arrested in New York City for violation of the Mann Act and that defendant newspaper published an Associated Press account thereof, that an F. B. I. agent informed one of defendant’s reporters that the man had formerly been in the city in North Carolina in which the paper was published, and had been formerly prosecuted there on a similar charge, that the reporter found in the city directory for prior years an identical name with statement that such person was employed in a local theatre, giving his business and residential address at that time, and that the paper then carried a news story stating that the person arrested in New York was the same person who had formerly resided in the city and was connected with the local theatre. Plaintiff, the person who had formerly resided in the city and was employed by the theatre, instituted this action for libel and testified that his acquaintances had joked him in regard to the publication. *Held:*The evidence discloses not only that plaintiff’s acquaintances understood that plaintiff was the person referred .to in the article but also that defendant, under a mistake of fact, intended to refer to plaintiff, and therefore the evidence is sufficient to be submitted to the jury on the question of whether the words libelous *per se*were spoken of and concerning plaintiff, and defendant’s motion to nonsuit was properly denied.

2. Libel and Slander § 12—

Evidence of the financial worth of defendant is competent upon the issue of punitive damages.

3. Libel and Slander § 16—

Punitive damages may be awarded in an action for libel and slander only itpon a showing that the publication was prompted by actual malice as distinguished from malice implied from the intentional doing of an act which would have a natural tendency to injure, but oppression, gross or willful wrong, or a wanton, reckless or criminal disregard or indifference to plaintiff’s rights will support an issue of punitive damages.

4. Same — Evidence held sufficient to sustain submission of issue of punitive damages.

The evidence disclosed that a person of a certain name was arrested in New York City for violation of the Mann Act and that defendant newspaper published an Associated Press account thereof, that an F. B. I. agent informed one of defendant’s reporters that the man had formerly been in the city in North Carolina in which the paper was published and had been formerly prosecuted there on a similar charge, and that he had been engaged in the amusement business, that the reporter found in the city directory for prior years an identical name with statement that the person of that name was employed in a local theatre, giving his business and residential address at that time, and that the paper published a news story stating that the person arrested in New York was the same person *14who hacl formerly resided in the city and was connected with the local theatre. *Held:*The E. B. I. agent did not state that the man arrested had formerly resided in the city or had been employed by the local theatre, and the publication of the news story as to the identity of the two persons without checking with plaintiff’s business or residence address as given in the city directory constitutes more than a scintilla of evidence that defendant published the libelous article concerning plaintiff with reckless disregard of plaintiff’s rights, and is sufficient to support the issue of punitive damages notwithstanding that defendant may have acted through an honest mistake, and therefore evidence of the financial worth of defendant is competent.

5. Libel and Slander § 6 — Mere statement that defendant had come in possession of information contra to prior libelous article held insufficient retraction.

Defendant published an article identifying plaintiff as the person who had committed and who was then charged with committing violations of the Mann Act. Thereafter it published a statement that it was informed that plaintiff was not the person who had been arrested on the charge. Upon plaintiff’s demand for a retraction, defendant sent him the second-article and requested him to advise defendant if this was not satisfactory. *Held:*While G. S., 2430, does not prescribe any particular form of retraction, it does require a categorical retraction and apology, and the mere statement that defendant had come into possession of information *contra*to that theretofore published is insufficient to meet the requirements of the statute, nor was it incumbent on plaintiff to approve or disapprove thereof, and his failure to do so does not exculpate defendant or preclude the submission of an issue of punitive damages.

6. Same—

Under O. S., 2430, the publication of an apology and retraction is not in itself sufficient, but it must be made to appear also that the libelous article was published in good faith, that its falsity was due to an honest mistake of fact, and that there were reasonable grounds for believing the statements in the article were true.

7. Libel and Slander §§ 3, 16—

The law presumes that general damages actually, proximately and necessarily result from an unauthorized publication which is libelous *per se*and therefore has the immediate tendency to injure plaintiff’s reputation, and such damages arise by inference of law even in the absence of actual pecuniary loss, and therefore need not be proved by plaintiff.

8. Same—

The fact that the law presumes that general damages result from the publication of a libel *per se*does not preclude the plaintiff from offering evidence of damages both general and special.

9. Same—

Evidence of the unauthorized publication of words libelous *per se,*raising the presumption of general damages, with testimony by plaintiff to the effect that he had suffered mental anguish, humiliation and embarrassment as a result thereof, entitles plaintiff to the award of some damages, the amount thereof being for the determination of the jury.

*15Appeal by defendant from *Erwin, Special Judge,*at May Term, 1939, of Guileoed.

No error.

Civil action to recover damages resulting from tbe publication of a libel.

Tbe defendant is a corporation wbicb publishes and circulates *The Greensboro Daily News*and *The Greensboro Record,*two daily newspapers published in tbe city of Greensboro. On 30 August, 1937, it published in *The Greensboro Daily News*an Associated Press dispatch from Atlantic City, N. J., under date of 29 August, reciting the round-up and arrest of alleged members of a vice ring which was operating in several cities of the United States. It stated that Harry L. Roth, who was arrested in New York, was listed by the Assistant U. S. District Attorney as a principal defendant; that Roth was released from the Federal Penitentiary 9 February after serving two years on a Mann Act conviction and that his record showed arrests in New York, Philadelphia and Detroit on Mann Act and other charges. On 31 August, 1937, it carried another Associated Press dispatch in which, among other things, it was stated that “Harry Roth 42 year old New Yorker who was linked to Luciano by J. Edgar Hoover, Chief of the Federal Bureau of Investigation, was committed to Mercer County Jail today in default of $25,000 bail.” It was stated that “Roth was charged with transporting a girl identified as Teddy Blaine from Philadelphia to Atlantic City for immoral purposes.”

This article repeated that Roth was charged with transporting a girl from one State to another for immoral purposes and that the raids were part of the concerted drive by the F. B. I. to stamp out the White Slave Traffic.

*The Greensboro Record,*in its edition of 30 August, 1937, carried an Associated Press dispatch under Trenton, N. J., date line, containing, among other things, the statement that “Federal agents plan to bring here from New York for questioning today a man identified by Hoover as Harry Roth who he said was reputedly a member of the Charles (Lucky) Luciano Gang.”

This article quoted the Federal Agent as stating that 37 prisoners arrested were “principals, procurers and madames.”

On the night of 31 August, one Morgan, F. B. I. agent stationed at Greensboro, telephoned J. N. Benton, engaged by the defendant as a newspaper reporter on *The Record,*and told him that he, Morgan, had just returned from Newark where he had engaged in the raids and that he thought there was a local story in connection with this raid in Jersey City and surrounding New York and that one of the men referred to in the Associated Press dispatch carried that morning was named Harry Roth and that he understood that Roth was formerly in Greensboro; *16that Roth had been tried here (Greensboro) some two or three years previous on a white slavery charge similar to the one he had just been arrested for and that he (Benton) could check up on it and get a local story probably. Benton, whose duty it was in part to prepare the column of the events of 10, 20 and 30 years ago carried by *The Record,*was aware of the fact that Roth Brothers had purchased the Palace Theatre in Greensboro in 1927. He mentioned that fact to Morgan and Morgan in reply stated that he understood that Roth, who was arrested in New York, “had been in the entertainment business.”

The next morning Benton examined the Greensboro City Directory. In the 1928 directory he found listed, “Harry Roth, Palace Theatre, residence Y. M. C. A.”; in each of the 1929 and 1930 directories he found, “Harry Roth (Palace Theatre) r Asheville, N. C.” The name Harry Roth did not appear in either the 1931 or 1932 directory. Benton then went to the office of the Clerk of the United States District Court where he ascertained that one Harry Roth was tried at the June Term, 1935, under the Mann Act and sentenced to three years imprisonment.

Thereupon, without any investigation at the Palace Theatre or at the Y. M. C. A. and without any further inquiry, Benton wrote for publication and the defendant published in its *Greensboro Record,*on 1 September, 1937, under the large type headlines, “NICE RING MAN IS KNOWN HERE” the following article: “Harry Roth One of Men Taken at Atlantic City in Roundup, Once Lived Here. The recent raid of the federal investigators in Atlantic City, N. J., and other cities that resulted in the arrest of Harry Roth on Monday night, is of local interest as Roth formerly resided in Greensboro. He is now under $25,000 bond, being charged with complicity in gigantic vice operations in violation of the Mann White Slave Law. Between 125 and 150 men were taken into custody as a result of the drive, headed by J. Edgar Hoover. Roth is regarded as one of the higher-ups in the conspiracy.

“Roth, 42, listed as a resident of New York, was for a time connected with the Palace Theatre in Greensboro, it is understood. In June, 1935, he was tried in United States Court for violation of the Mann White Slave Act and given two years in Atlanta on each of four counts, the sentences to run concurrently. It will be recalled that he was arrested in San Francisco, Calif., after federal officers had traced him to various parts of the country. He was specifically charged with inducing young-women to go from Greensboro to New York, promising employment. Arriving in the metropolis, it was brought out during the trial, the true motive of the journey was revealed and several girls testified to their experiences after making the trip to New York on the promise of employment.

*17“Aft.p.r Eotb was arrested in San Francisco it was necessary to have one of tbe prosecuting witnesses taken to tbe Pacific coast city for purpose of identification, tbe prisoner resisting removal.

“E. L. Morgan, of tbe Greensboro office of tbe F. B. I., was among tbe number summoned to New York and Atlantic City to assist in tbe vice gang roundup. He returned borne Tuesday.”

On tbe afternoon of 1 September, after tbe issue of *The Record*containing said article was put in circulation, Max Zager, wbo operates tbe Palace Theatre in Greensboro under lease from plaintiff and bis brother, after reading tbe article, called *The Greensboro Record*and asked them bow they knew it was tbe Harry Eotb that was formerly connected with tbe Palace Theatre. Defendant’s agent in answer advised him that tbe information they got was from tbe F. B. I. man wbo told him be was; that tbe F. B. I. man bad questioned this man and be told them be formerly lived in Greensboro and be operated tbe Palace Theatre. Zager then advised tbe defendant through its agent that tbe Eotb wbo was formerly connected with tbe Palace Theatre was much younger than 42 years of age, that be was a man of good character and good habits and that be was sure that be was not linked up in that affair. Tbe agent of tbe defendant then advised Zager that that was tbe information they received from tbe F. B. I. man. Zager then called plaintiff’s brother at Harrisburg, Va., and inquired if tbe report was true. He was advised that it was not, that plaintiff resided in Suffolk, Ya. On tbe same afternoon Mr. Stern likewise phoned tbe defendant relative to tbe article and advised tbe defendant that it bad made a mistake.

Upon receiving tbe information from Zager and Stern, Benton advised tbe managing editor of tbe *Mews*of tbe mistake and suggested that tbe article be not published in tbe morning edition of tbe *News.*Thereafter, there was no further publication in either *The Greensboro News*or *The Greensboro Record*in anywise referring to plaintiff except that *The Greensboro Record*in its issue of 2 September, carried tbe following article:

“ANOtheb Harry Eoth Figures in Aeeair.

*“The Greensboro Record*was informed Wednesday afternoon that tbe Harry Eotb, arrested in tbe vice raids in Atlantic City and other northern cities Monday night, was not the Harry Eotb who some years ago was connected with tbe Palace Theatre, as was stated in tbe article in Wednesday’s *Record.*Tbe Harry Eotb wbo was engaged in business here was a much younger man, it was said, and be was a young man of exemplary habits and character, according to citizens wbo were personally acquainted with him.

“Tbe statement in Wednesday’s paper was based on information that tbe prisoner, following arrest in New Jersey, bad indicated to officers be was at one time in tbe movie business in Greensboro.”

*18On 11 September, 1937, plaintiff wrote *The Greensboro Record*calling attention to tbe article of 1 September and its contents and demanding a retraction in tbe following language:

“Said statements as appeared in your paper are false and untrue and I hereby demand a full and fair correction, apology and retraction published in your paper and in as conspicuous a place and type as was tbe article published by you on September 1, 1937.” Tbe letter was received by tbe managing editor of defendant and be, in reply, in behalf of *The Greensboro Record,*wrote tbe plaintiff enclosing a copy of tbe article which appeared in *The Greensboro Record*of 2 September and requested that if said article did not meet with plaintiff’s approval be so inform *The Greensboro Record.*Tbe defendant received no reply, published no retraction and took no further action in respect thereto.

Plaintiff instituted this action 20 October, 1937, to recover damages, both compensatory and punitive.

In answer to appropriate issues submitted, tbe jury found that tbe article published by defendant 1 September, 1937, was published of and concerning tbe plaintiff Harry Roth and assessed compensatory damages, but answered tbe issue as to punitive damages in tbe negative. There was judgment on tbe verdict and tbe defendant excepted and appealed.

*Stern & Stern for plaintiff, appellee.*

*Douglass •& Douglass, Eobgood & Ward, and Chas. M. Ivey, Jr., for defendant, appellant.*

Barnhill, J.

On this appeal tbe defendant presents a number of questions for determination: (1) Did the»court err in overruling tbe defendant’s motion for judgment as of nonsuit on plaintiff’s first cause of action for compensatory• damages ? (2) Did tbe court err in overruling defendant’s motion for judgment as of nonsuit on plaintiff’s second cause of action for punitive damages? (3) Was it error for tbe court to admit evidence of defendant’s financial worth? (4) Did tbe court err in refusing to charge tbe jury that it would be warranted in awarding only nominal damages as prayed by tbe defendant? And, (5) Did tbe court err in failing to give tbe defendant’s special prayer for instructions to tbe effect that the jury should answer tbe first issue “No” ?

Tbe article not only states that Roth was arrested on a charge of violating tbe White Slave Act and with imprisonment in default of bond but it likewise attributes to him conduct of such vile' baseness and depravity as to indicate a total lack of any sense of tbe social duty that a man owes to bis fellow man and to society. If it bad reference to tbe plaintiff it was false. This is conceded by tbe defendant. Being false *19it is a libel *per se. Flake v. News Co.,*212 N. C., 780, 195 S. E., 55. Tbe court below so instructed tbe jury, to wbicb there is no exception.

On tbe defendant’s motion to nonsuit on tbe first cause of action and its prayer for a directed verdict, on tbe first issue tben, tbe only question to be determined is as to whether there was sufficient evidence that tbe publication was “of and concerning tbe plaintiff.”

Tbe testimony of tbe witness Benton clearly indicates that be wrote tbe article because of its supposed local interest and concerning tbe Roth who formerly operated tbe Palace Theatre and resided at tbe Y. M. C. A. It was so understood by tbe witness Zager and by Mr. Stern and by others who accosted and joked tbe plaintiff in respect thereto. After receiving a phone call from Zager, Benton informed *the*managing editor that there bad been a mistake. Tbe managing editor wrote tbe plaintiff that tbe information was obtained from tbe Federal investigator Morgan stating “Investigator Morgan told this newspaper that Roth stated be has been connected with tbe Palace Theatre in Greensboro.” In tbe publication attempting to correct tbe false impression made tbe defendant stated that: “Another Harry Roth Figures in Affair;” and that it was informed “That tbe Harry Roth arrested in tbe vice raids in Atlantic City and other northern cities Monday night was not tbe Harry Roth who some years ago was connected with tbe Palace Theatre.” Benton likewise testified that when be wrote tbe article “be was under tbe impression that tbe man referred to therein was formerly connected with the Palace Theatre.”

It would seem, therefore, that tbe article was not only understood by those who read it as being of and concerning the plaintiff but that tbe defendant, by mistake of fact, so intended it. In any event, tbe evidence raises an issue of fact wbicb was properly submitted to tbe jury. On tbe issue so submitted tbe court charged tbe jury fully in tbe language of special instructions prepared by learned counsel for tfre defendant. Naturally tbe charge on this aspect of tbe case was as favorable to tbe defendant as tbe law would permit. At least there is no exception thereto.

Under tbe view we take of tbe evidence tbe second and third questions may be treated as one.

When tbe allegations of tbe complaint are sufficient to support a demand for punitive damages, and there is testimony tending to support tbe allegations, evidence of tbe pecuniary circumstances and wealth of tbe defendant is competent on tbe issue thereby raised. *Adcock v. Marsh,*30 N. C., 360; *Reeves v. Winn,*97 N. C., 246, 1 S. E., 448; *Baker v. Winslow,*184 N. C., 1, 113 S. E., 570, and authorities therein cited at p. 10.

*20In some jurisdictions it is beld that where malice exists exemplary damages may be given, and that it is immaterial whether the malice is actual or such as is implied in law for the publication of a libel *per se.*25 Cyc., 536, *et seq.*In this jurisdiction punitive damages may not be awarded on a showing of implied malice only. To support an award of vindictive damages it must appear that the publication was prompted by actual malice (as contra-distinguished from imputed malice, or malice implied by the law from intentionally doing that which in its natural tendency .is injurious), or that the defamation was recklessly or carelessly published. *Baker v. Winslow, supra; Gilreath v. Allen,*32 N. C., 67; *Bowden v. Bailes,*101 N. C., 612; *Upchurch v. Robertson,*127 N. C., 127. Such damages may be awarded when there is evidence of oppression, or gross and willful wrong; *Reeves v. Winn, supra;*or a wanton and reckless disregard of the plaintiff's right; *Fields v. Bynum,*156 N. C., 413, 72 S. E., 449; or of gross indifference; *Woody v. Bank,*194 N. C., 549, 140 S. E., 150; or reckless and criminal indifference to plaintiff’s rights; *Hall v. Hall,*179 N. C., 571, 103 S. E., 136.

The F. B. I. agent stated to the defendant’s news agent that he understood the Roth arrested “was formerly in Greensboro and had been tried in Greensboro,” and that “he had been in the entertainment business.” He did not state that he was formerly a resident of Greensboro or that he had ever been connected with the Palace Theatre. The reporter ascertained a man by the name of Roth had been for an undisclosed length of time, in Greensboro pursuing his vocation as a professional pimp and had been arrested and tried in the United States District Court. He further ascertained that Roth, the plaintiff, formerly resided in Greensboro at the Y. M. O. A. and was connected with the Palace Theatre. He published the article without investigation either at the place of employment or at the place of residence of the Roth about whom he wrote when such an investigation before the publication would have disclosed the irue facts. The managing editor stated to Zager that the E. B. I. agent had told him that the Roth who was arrested was a man who formerly lived in Greensboro and operated the Palace Theatre. The record fails to disclose that such information was received from the E. B. I. agent.

“A good name is rather to be chosen than great riches.” A good reputation, when based on sound character, is a man’s most precious possession. No publication, the tendency of which is to seriously impair or destroy a good name, should be permitted without most careful investigation. The failure to go to a known and easily available source of information, coupled with other facts and circumstances which appear in this record and considered in connection with the presumption of legal malice arising from the publication of a libelous article, constitutes more *21than a scintilla of evidence tending to show that in publishing the article the defendant acted with reckless disregard of plaintiffs rights and is sufficient to support the submission of an issue of punitive damages. This is all we are required to determine.

A consideration of the whole record leads to the conclusion that the defendant acted through an honest mistake. The jury accepted that view of the evidence and answered the issue on punitive damages in the negative. But, an honest mistake will not protect the defendant. *Washington Post v. Kennedy,*3 F. (3d), 207, 41 A. L. R., 483; also see Anno. 26 A. L. R., 464, *et seq.*

As there is sufficient evidence to be submitted to the jury on the issue of punitive damages there was no error in the admission of testimony relating to the defendant’s financial condition.

Nor is the defendant protected by its publication of 2 September in which it corrects, on information, the publication of 1 September. The plaintiff duly served notice on the defendant by letter, the receipt of which is admitted, demanding a retraction as provided by ch. 557, Public Laws 1901; C. S., 2430. If the defendant desired to avail itself of the provisions of this statute it was its duty to publish an apology and retraction as prescribed by statute. This it did not do.

While the statute, C. S., 2430, does not require the retraction to be in any particular form or couched in any particular language, it does require “a full and fair correction, apology and retraction” which must clearly refer to and admit the publishing of the article complained of and directly, fully and fairly, without any uncertainty, evasion or subterfuge, retract and recall the alleged false and defamatory statements and apologize therefor. *Oray v. Times Co.*(Minn.), 77 N. W., 204. The alleged correction falls far short of this requirement. It neither retracts nor apologizes therefor, but merely states that the defendant is then in possession of information *contra*that contained in the original publication. See *Osborn v. Leach,*135 N. C., 627; *Paul v. Auction Co.,*181 N. C., 1, 105 S. E., 881.

The demand for the apology gave the defendant the election of complying therewith or risking the consequence of noneompliance. It was not the duty of the plaintiff to approve or. disapprove the article already published. Failure to do so does not exculpate the defendant or protect it against the submission of any issue of punitive damages on a proper showing.

It may be noted that under express terms of C. S., 2430, the publication of the apology and retraction standing alone is not sufficient. It must be made to appear further in the trial that “said article was published in good faith, that its falsity was due to an honest mistake of fact, *22and that there were reasonable grounds for believing that the statements in said article were true.”

While the court declined to charge the jury in substance that it would be warranted in awarding only nominal damages as prayed by the defendant, it did charge the jury on the issue of damages that “if the plaintiff would recover more than nominal damages under the second issue, he must satisfy you by the greater weight of the evidence in this ease that he is entitled to recover actual damages of the defendant . . . your award of damages to plaintiff under the second issue will be confined to nominal damages unless the plaintiff establishes by the greater weight of the evidence that he has suffered actual damages as the direct and proximate result of the wrongful acts and conduct of the defendant.”' If there was any error in this charge it was favorable to the defendant.

When an unauthorized publication is libelous *per se,*malice and damage are presumed from the fact of publication and no proof is required as to any resulting injury. The law presumes that general damages actually, proximately and necessarily result from an unauthorized pub-licátion which is libelous *per se*and they are not required to be proved by evidence since they arise by inference of law, and are allowed whenever the immediate tendency of the publication is to impair plaintiff’s reputation, although no actual pecuniary loss has in fact resulted. *Flake v. News Co., supra; Bowden v. Bailes, supra; Fields v. Bynum, supra; Hamilton v. Nance,*159 N. C., 56, 74 S. E., 627; *Barringer v. Deal,*164 N. C., 246, 80 S. E., 161; *Paul v. Auction Co., supra; Baker v. Winslow, supra; Jones v. Brinkley,*174 N. C., 23, 93 S. E., 372; *N. Y. Evening Post Co. v. Chaloner,*265 E., 204, 36 C. J., 1150; *Oates v. Trust Co.,*205 N. C., 14, 168 S. E., 869.

In the *Bowden case, supra,*a charge that “the plaintiff is entitled to some damages” resulting from a slander *per se*was affirmed. In the *Barringer case, supra,*citing the *Hamilton*and *Fields cases, supra,*it was held that on a slander *per se*compensatory damages which embrace compensation for those injuries which the law will presume must naturally, proximately and necessarily result, including injuries to the feelings alrd mental suffering endured in consequence, should be awarded; and that it is not required that the plaintiff introduce evidence that he has suffered special damage. In the *Fields case, supra,*the court declined to charge the jury “It is incumbent on the plaintiff to show to the jury evidence that he has suffered damage before he can ask you to award any to him.” This Court held that the refusal to give the requested instruction was proper. The other cited eases are to like effect.

“Where the facts and nature of the action so warrant, actual damages include pecuniary loss, physical pain, and mental suffering . . . compensatory damages include all other damages than punitive, thus *23embracing not only special damages as direct pecuniary loss but injury to feelings, mental anguish, etc.” *Baker v. Winslow, supra.*“Compensatory damages include (1) pecuniary loss direct or indirect, *i.e.,*special damages; (2) damages *for*physical pain and inconvenience; (3) damages for mental suffering; and (4) damages for injury to reputation.” *Osborn v. Leach, supra; Fields v. Bynum, supra; Barringer v. Deal, supra.*

However, the fact that the law presumes that general damages result from the publication of a libel *per se*does not preclude the plaintiff from offering evidence of damages both general and special.

The plaintiff testified in substance that he had suffered mental anguish, humiliation and embarrassment as a result of the publication complained of. This evidence, together with the presumption of general damages resulting from the publication of the libel, entitled the plaintiff to the award of some damages, the amount of which it was the duty of the jury to determine.

A careful examination of the record and the briefs filed leads us to the conclusion that the exceptive assignments of error are without substantial merit.

No error.