(181 N. C. 1) (105 S.E.) PAUL v. NATIONAL AUCTION CO. et al. (No. 9.) (Supreme Court of North Carolina. Feb. 23, 1921.) 1. Libel and slander 16—Untrue advertisement that plaintiff real estate agent had no connection with defendants libelous. Where defendants published of plaintiff real estate agent, by way of -advertisement in a newspaper, that there was absolutely no contract or connection between him and defendants, as he had advertised, when in fact there was an association between plaintiff and defendants, the publication was libelous of plaintiff, as tending to hold him up to public obloquy or contempt, and subjected defendants to an action without averment of special damages. 2. Libel and stander 67-Provisions for notice looking to retraction and apology affect only punitive damages. C. S. § 2429 et seq., relative to notice looking to retraction of and apology for a libel, is significant only on the question of punitive damages, and an action for libel may proceed for recovery of cempensatory damages, whether or not the notice has been given; compensatory damages including compensation for pecuniary loss, physical pain, mental suffering, and injury to reputation. 3. Libel and slander 97-Formal demurrer proper way to point out defect in petition of no allegation of notice looking to retraction and apology. In an action for libel, defendant claiming that there was no notice served on him looking to retraction and apology, pursuant to C. S. 8 2429 et seq., formal demurrer pointing out such defect would have been the proper way to present the objection. 4. Appeal and error ~1039(4)—Omission of allegation of notice looking to retraction and apology harmless, in view of recovery. or of any rights accruing to plaintiff under C. S. 543, by reason of such failure. Appeal from Superior Court, Beaufort County; Cranmer, Judge. Action by A. A. Paul against the National Auction Company, S. A. Eure, and W. T. Burton, trading as Burton Bros. From a judgment for plaintiff, defendant Burton appeals. No error. The cause was before us at the preceding term, and a certiorari was ordered for a further statement of case on appeal. 104 S. E. 37. The writ having been complied with, it appears that plaintiff instituted this action, returnable to October term of the superior court of 1917, against the National Auction Company, S. A. Eure, its president, and W. T. Burton, trading as Burton Bros.; that personal service of summons was made on all of the defendants, and verified complaint duly filed against all of them, alleging in effect a breach of contract on part of all defendants to associate themselves with plaintiff as dealers in real estate, and a libelous publication against plaintiff concerning such association and contract, causing damages, etc. There were separate answers, filed by the Auction Company and S. A. Eure, its president, in denial of the contract or breach thereof, etc. Defendant Burton made no answer, and entered no appearance in the cause until after verdict, when he appeared and moved to set same aside, which motion was overruled by the court. On issues submitted the jury rendered the following verdict: "(1) Did defendants Auction Company and Burton make and enter into a contract with plaintiff as alleged in the complaint? Answer: Yes. "(2) If so, was plaintiff ready, able, and will In an action for libel, failure of the petitioning to perform the same on his part? Answer: to allege notice served on defendant looking to retraction and apology, pursuant to C. S. § 2429 et seq., was harmless to defendant, where the record and charge show that only compensatory damages were awarded. 5. Trial on 256(13)-General instruction damages not reversible error, in absence of prayer to make more specific. In an action for libel, instruction on damages that the burden of the issue was on plaintiff, and he must satisfy the jury of the amount of his damages, which could not exceed $5,000, the amount alleged, though somewhat general, held not reversible error, in the absence of any prayer to make more specific. 6. Pleading ~~36(5)—Submission of issue by plaintiff not in waiver of defendant's admission by failure to answer. In an action for libel, submission of issue as to whether the publication was wrongful and unlawful on the part of a defendant, and after request by plaintiff not to publish, held not in waiver of such defendant's failure to answer, Yes. "(3) Did said defendants wrongfully breach said contract as alleged? Answer: Yes. "(4) If so, what damage has plaintiff sustained by reason of the breach thereof? swer: None. An Judgment on verdict for plaintiff. Defendant Burton excepted and appealed, assigning for error the denial of his motion to set aside the verdict, and refusal of his honor to hold, as to the alleged libel, that no cause of action had been stated or proved, with other specified objections of the charge as given. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes W. C.. Rodman, of Washington, N. C., W. Į thority to speak for the National Auction ComA. Lucas, of Wilson, and Skinner & Whedbee, pany of Ayden, but wish to announce that of Greenville, for appellant. there is absolutely no contract or connection between Mr. Paul and the Burton Bros., nor has had no conference whatever with the Burhas there ever been. Furthermore, Mr. Paul Ward & Grimes, Small, MacLean, Bragaw & Rodman, and J. D. Paul, all of Washington, N. C., for appellee. HOKE, J. The allegations in the complaint, duly verified, and unanswered by defendant Burton, are in effect: That the publication, the basis of plaintiff's cause of action, was both false and malicious, and designed and intended to injure plaintiff in his business reputation, to his great damage, and the evidence offered in support of the charge tended to show that in 1917 plaintiff, a young man desiring to enter the real estate business in the town of Washington and vicinity, a new field, was advised that his efforts and business success would be greatly promoted if he would associate himself with persons of experience and established repute in that locality, and with that view plaintiff formed an association with defendants, by which the latter were to auction the properties secured by plaintiff to the best advantage, and they were to divide the profits, one-third each, to plaintiff, the National Auction Company, and W. T. Burton, trading as Burton Bros. That, acting on the suggestion of defendant S. A. Eure, president of the company, plaintiff forthwith posted several advertisements concerning the business, and also caused to be published in the Washington Daily News, in its issue of May 30, 1917, a notice of his business and of his association with defendants as follows: "An Important Notice. "I have associated myself with the National Auction Company, of Ayden, and the famous Burton Bros., of Wilson, recognized as the foremost auctioneers in the county. ton Bros. about such an association as he announced by advertisement yesterday. We wish to warn the public that we have no connection whatever with Mr. Paul, nor has he to our knowledge visited our office at Wilson. We wish to inform the public that in dealing with Mr. Paul it is not dealing in any way with us, and we will in no way be responsible for any contract made with him, nor bound in any way by any such contract. "Burton Brothers, of Wilson, N. C." That plaintiff, having learned of defendant Burton's purpose to make this publication, and before same appeared, sought an interview with said defendant, fully informed him of the contract existent between them, and endeavored to dissuade him, urging that the effect could only work serious harm to plaintiff's prospects and business; but, notwithstanding plaintiff's protest and remonstrance, defendant persisted in his purpose, and that said notice so published as heretofore stated was false and malicious, designed and intended to injure plaintiff in his character and business. [1] It 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, and further, and without averment of special damages, such a charge may be sustained by a false publication, calculated to injure one in his trade, business, or profession, by imputing to him “fraud, indirect dealing, or incapacity" in reference to the same. The publication complained of in this instance begins by specially referring to plaintiff's advertisement of the day before, expressly repudiates plaintiff's claim to be associated with defendant, and in terms and under circumstances well calculated to degrade plaintiff in the estimation of the community, and to greatly weaken or destroy its confidence in his business integrity, and this after plaintiff had fully informed said defendant of the existence of the contract, and the circumstances attendant That in the issue of said paper the follow-upon its execution, and protested against the ing day defendant Burton caused to be pub-publication and the harm it was likely to do lished a notice, signed by him, in repudiation of plaintiff's advertisement in terms as follows: "If you have land to sell at auction, or in any other way, it will pay you to see me. We have the largest, oldest, and best-equipped force in the South. We give sales that cause the crowds to flock from miles around. Balloon ascensions and other features are used for attractions. "Call at my office and investigate. Attractive advertising matter is here for your inspection. "We Do Things. "A. A. Paul, Real Estate & Insurance, "Washington, N. C." "To the Public: In yesterday's Daily News appeared an advertisement by A. A. Paul, stating that he had associated himself with the National Auction Company, and the famous Burton Bros. of Wilson, for the sale of auction him in his character and his calling, and under the principles stated, and numerous decisions here and elsewhere approving the same, such a publication so made in our opinion is clearly libelous, subjecting defendant to an action, and without averment of special damages. Carter v. King, 174 N. C. 549, 94 S. E. 4; Jones v. Brinkley, 174 N. C. 23, 93 S. E (105 S.E.) this as v. Sun Printing Co., 179 N. Y. 144, 71 N. E. [ denied, and are therefore to be taken as true 739, 66 L. R. A. 612, 103 Am. St. Rep. 841, 1 as to him. You will write your answer to this Ann. Cas. 326; Riggs v. Denniston, 3 Johns. issue some sum not exceeding $5,000. The Cas. (N. Y.) 198; Mains v. Whiting, 87 Mich. plaintiff asks for $5,000, and you could not al172, 49 N. W. 559; Burt v. Advertiser, etc., low him more than that amount; do not take Co., 154 Mass. 238, 28 N. E. 1, 13 L. R. A. 97; Lansing v. Carpenter, 9 Wis. 540, 76 Am. Dec. 281; Barron v. Smith, 19 S. D. 50, 101 N. W. 1105; Sheibley v. Huse, 75 Neb. 811, 106 N. W. 1028, 13 Ann. Cas. 376; Trebby v. Transcript Publishing Co., 74 Minn. 84, 76 N. W. 961, 73 Am. St. Rep. 330; 19 American & English Encyclopedia (2d Ed.) pp. 909942; 17 R. C. L. pp. 263-294, title Libel and Slander, §§ 3-34. While this charge is somewhat general as to amount of damages to be awarded, on consideration of the entire record, we do not think it should be held for reversible error on that account, in the absence of any pray[2-4] It is further insisted in support of ap-er to make the same more specific, and as to pellant's principal objection that there is no the objection here chiefly urged, that the allegation of notice being served on defend-statement of the cause of action, not having ant, looking to a retraction and apology, pur- been denied by the defendant Burton, must suant to provisions of Consolidated Statutes, be taken to be true as to him, the charge chapter 48, section 2429 et seq. In cases on seems to be fully justified by the statute dithese sections which have come under our rectly bearing on the subject. Consolidated observation, the suits were against the pro- Statutes, § 543, to the effect that "every maprietors, or publishers and editors, of the terial allegation of the complaint not contronewspapers and periodicals; but conceding verted by the answer" shall be taken as that the language of this legislation is broad true. Nor is the effect of this provision of enough to include, and is intended to and defendant's failure to answer prevented or does include, a publication of the kind print- waived by the submission of the fifth issue, ed here, a publication by an individual hav- as to whether the publication of that issue ing no business or other connection with the was "wrongful and unlawful on the part of paper, etc.-and this seems to be the clear defendant Burton, and after request by meaning and purport of the law-the position plaintiff not to publish same." That issue cannot avail the appellant on the facts of was no doubt submitted by reason of certain this record. In the well-considered case of decisions of this court to the effect that, on Osborn v. Leach, 135 N. C. 628, 47 S. E. 811, recovery for a tort, founded on negligence 66 L. R. A. 648, the court has held that these merely, arrest and imprisonment on final prostatutory provisions only have significance on cess would not be justified; the cases holdthe question of awarding punitive damages; ing, further, that to justify such imprisonthat an action for libel may proceed for re- ment there must be a finding by the jury covery of compensatory damages, whether that the tort was "willfully committed" (Mcthe notice has been given or otherwise the Kinney v. Patterson, 174 N. C. 483, 93 S. E. same case holding that such damages may be 967; Oakley v. Lasater, 172 N. C. 96, 89 S. properly held to include compensation for E. 1063)-a general principle fully approved "pecuniary loss, physical pain, mental suffer- and justified in a former case of Ledford v. ing, and injury to reputation." In the case Emerson, 143 N. C. 527, 55 S. E. 969, 10 L. before us, not only has there been no formal R. A. (N. S.) 362, wherein it was held that, demurrer pointing out the defect suggested- where fraud was charged in proceedings`anthe proper way under our decisions to present cillary to the principal action, for an acthe objection-but a perusal of the record counting, arrest, and imprisonment by final and the charge of the court on the subject process could not be had unless the issue of fails to show that the element of punitive fraud was passed upon on an issue submitted damages was in any way considered or pass- to the jury. Whether the principle adverted ed upon by the jury, but, on the contrary, to and involved in these decisions is permitgives clear indication that only compensatory ted or required on a tort like the present is damages have been awarded. There has no not now before us, but the issue we are conharm come to defendant, therefore, by the sidering was evidently submitted not in failure to allege or prove the statutory no- waiver of defendant's failure to answer or tice, and this exception also must be disal- of any rights accruing to plaintiff by reason lowed. of it, but with a view of having it determin [5, 6] It was further objected that his hon-ed by the jury whether in addition to the ador, in charging the jury on the sixth issue, mission of a cause of action growing out of that as to damages, said, among other things: defendant's failure to answer, the tort so ad"The burden of this issue is upon the plain-mitted was willful and without just cause or tiff; he must satisfy you of the amount of his damage. Burton makes no defense to this ac excuse. On full consideration, we are of opinion sented in the record disclose no reversible | this action (the defendant in that) had a error, and the judgment on the verdict is af- warrant of attachment served upon the propfirmed. No error. (181 N. C. 7) WINDER v. PENNIMAN. (No. 12.) (Supreme Court of North Carolina. Feb. 23, 1921.) 1. Process 119, 120-Nonresident in state solely to attend to litigation as suitor or witness cannot be served. A summons under civil process cannot be served on a nonresident coming into the state solely to attend to litigation as suitor. 2. Process 125 - Nonresident defendant by giving replevin bond did not waive exemption from service. Where a nonresident defendant was served while in the state as witness in another cause, and the property he had with him attached, and he gave a replevin bond to the sheriff for return of the attached property, but not for discharge of the attachment, and made no motion to set it aside, he did not, by giving such bond, waive his exemption as a nonresident from service of civil process. erty of plaintiff which was found by the court to consist of a suit case and handbag containing his wearing apparel, a ledger, an order book, and salesbook which he had brought for use as evidence in the trial of said case against Winder. This attachment was served by the sheriff on the night of intending to take an early train at 6:30 the February 11 about 10 o'clock, the plaintiff next morning for Norfolk, his most direct route home. He had arrived in Elizabeth City on the day before for the sole purpose of said trial, which was completed on that day, and intended to leave on the next morning. After the attachment was served on his personal baggage the defendant filed a replevin bond for return of the attached property, but not for the discharge of the attachment, and made no motion to set it aside. Thereafter, on February 13, the defendant appeared specially by counsel, who moved to strike out the return of the sheriff, to set aside the attachment and discharge the property seized thereunder, and to dismiss the action. appeal to the judge the judgment of the clerk This motion was refused, and on was affirmed, and the defendant's motion denied. Appeal by defendant. Aydlett & Simpson, of Elizabeth City, for appellant. Meekins & McMullan and Thompson & Wilson, all of Elizabeth City, for appellee. CLARK, C. J. [1] "A summons under civil process cannot be served upon nonresidents who come into this state for the sole purpose of attending to litigation either as suitor or witness. Such rule is based upon high considerations of public policy, and not upon statutory law, since it is to the best interests of the public that suitors and witnesses from other states, who cannot be compelled to attend courts here, may not be deterred from Appeal from Superior Court, Pasquotank voluntarily appearing. The exemption of nonCounty; Allen, Judge. Action by L. L. Winder against Nicholas G. Penniman, trading as the Baltimore Pulverizing Company, wherein defendant moved to strike out the sheriff's return, to set aside attachment, to discharge the property seized, and to dismiss the action, which motion was refused by the clerk of court, affirmed on appeal to the judge, and defendant appeals. Reversed. The defendant was a resident of Maryland and came to Elizabeth City on February 11, 1920, to prosecute an action brought by him against Winder and also as witness in said case, and it is found as a fact that he came for no other purpose; that a few minutes after the case against Winder was determined on said February 11, 1920, the plaintiff in resident suitors or witnesses from service of civil process while attending courts in this state covers the time of their coming, their stay, and a reasonable time for returning." Cooper v. Wyman, 122 N. C. 784, 29 S. E. 947, 65 Am. St. Rep. 731, where the subject is fully discussed; also Brown v. Taylor, 174 N. C. 423, 93 S. E. 982, L. R. A. 1918B, 293. [2] It is admitted that the defendant, a nonresident, was protected from service while in the state to attend the trial of his action and for a reasonable time before and after the trial, and that he was preparing to leave immediately after the termination of his cause. But it is contended that he waived his exemption by giving a bond for the release of his property, and for this the plaintiff relies upon Mitchell v. Lumber Co., 169 N. C. 397, (105 S.E.) 86 S. E. 343. We think this case differs from 35 Mo. App. 303; Palmer v. Rowan, 21 Neb. that, in that in the Mitchell Case the defend- 458, 32 N. W. 210, 59 Am. Rep. 844; Ela v. ant had property in this state which was not Ela, 68 N. H. 314, 36 Atl. 15; Martin v. exempt from attachment, and which the de- Whitney, 74 N. H. 506, 69 Atl. 888; Dickfendant had a right to attach whether the inson v. Farwell, 71 N. H. 214, 215, 51 Atl. defendant was in the state or not. Therefore, 624; Parker v. Marco, 136 N. Y. 589, 32 N. when the defendant came in, gave bond, and E. 989, 20 L. R. A. 46, 32 Am. St. Rep. 770; secured the release of his property which Gourley v. Williams, 46 Okl. 633, 149 Pac. was rightfully attached, he submitted him- 229; Burroughs v. Cocke, 56 Okl. 627, 156 self to the jurisdiction of the court, but here Pac. 196, L. R. A. 1916E, 1172; Ellis v. the undertaking was only a replevin bond, Degarmo, 17 R. I. 716, 24 Atl. 579, 19 L. R. and did not ask the release of the attachment A. 562; Farwell v. Des Moines Brick Mfg. as to any other property of the defendant Co., 97 Iowa, 286, 66 N. W. 176, 35 L. R. A. which might be found in this state, and does not bind the principal and his surety to pay any judgment which may be recovered in the action. It is merely an engagement to redeliver the attached property, or pay the value thereof, to the sheriff to whom execution upon any judgment obtained by the plaintiff might be issued, and the order authorized the sheriff to surrender the possession of this property to the defendant, but did not dissolve the attachment nor withdraw the property from the lien thereon. Clearly, therefore, it has not the same effect as a bail bond or an undertaking for the discharge of the attachment. It does not release the lien of the attachment nor stand in the place of the attached property, and hence the giving of such an undertaking is not an acknowledgment of the jurisdiction of the court, or the validity of the attachment. This view is clearly discussed and stated in Winter v. Packing Co., 51 Or. 97, 93 Pac. 930, 4 Corpus Juris, 1331, and other cases in the notes thereto. The law to this purport is clearly stated and ably discussed in Larned v. Griffin (C. C.) 12 Fed. 590, which has been cited with approval in U. S. v. Sanborn (C. C.) 28 Fed. 302; Ex parte Levi (D. C.) 28 Fed. 652; Kinne v. Lant (C. C.) 68 Fed. 441; Hale v. Wharton (C. C.) 73 Fed. 740; U. S. v. Zavelo (C. C.) 177 Fed. 537; Roschynialski v. Hale (D. C.) 201 Fed. 1018; Parker v. Marco, 30 Abb. N. C. 63; Pearce v. Sutherland, 3 Alaska, 303; Parmentier v. Classies, 5 Alaska, 88; Powers v. Arkadelphia Lumber Co., 61 Ark. 508, 33 S. W. 842, 54 Am. St. Rep. 276; Brooks v. State, 3 Boyce (Del.) 34, 79 Atl. 790, 51 L. R. A. (N. S.) 1132, Ann. Cas. 1915A, 1133; State v. Biedler, 6 Boyce (Del.) 262, 99 Atl. 273; Engle v. Manchester, 46 App. D. C. 228; Thornton v. Machine Co., 83 Ga. 291, 9 S. E. 679, 20 Am. St. Rep. 320; Gregg v. Sumner, 21 Ill. App. 112; Lawrence v. Guaranty Investment Co., 51 Kan. 222, 32 Pac. 816; Copas v. Anglo-American Provision Co., 73 Mich. 546, 4 N. W. 690; Malliat v. Vogel, 125 Mich. 291, 84 N. W. 279; Monroe v. St. Clair Circuit Judge, 125 Mich. 283, 84 N. W. 305, 52 L. R. A. 192; Chubbuck v. Cleveland, 37 Minn. 468, 35 N. W. 362, 5 Am. St. Rep. 864; Christian v. 68; Sewanee Coal, Coke & Land Co. v. Williams, 120 Tenn. 343, 107 S. W. 968; State v. Roberts, 87 Wis. 292, 58 N. W. 409; State v. Polacheck, 101 Wis. 432, 77 N. W. 708. The defendant in the principal case cited, as in this, was attending court trial and was there for no other purpose. He was sued and arrested in a civil suit, gave bond, and was released, and the court held that giving the bond was not a submission to the jurisdiction of the court. This case also differs from Mills v. R. R., 119 N. C. 693, 25 S. E. 854, 56 Am. St. Rep. 682, where a nonresident defendant came in and entered a general appearance and filed an answer to the merits which was clearly a submission to the jurisdiction. In this case the defendant denied the right of the plaintiff to serve civil process upon him, and, although he gave a replevin bond for the release of his personal effects illegally attached, he entered a special appearance before pleading to the action and moved to dismiss because he was entitled to the privilege of exemption. In Hilton v. Can Co., 103 Va. 255, 48 S. E. 899, the court says: "It would be a strange construction to hold that a bond given by a debtor to release property from the operation of an attachment should have the effect of subjecting him to a personal judgment. Every nonresident debtor, if that be true, would be in the dilemma of being denied the right to release the attached property by the execution of a bond, and being subjected to a personal judgment. The property levied upon might [as in this case] be of small value as compared with the amount in controversy, but, if the principle contended for be true, the penalty of its release by the execution of a bond would be a submission to the jurisdiction of the court." This will appear most strikingly if, instead of an attachment of his personal effects, the person of the defendant had been arrested and he had given bond for his release that he might return home, or to avoid remaining in jail until a motion for his release could have been made and argued by counsel. In 2 R. C. I. p. 875, it is held that in a majority of the states by an appearance and |