Brown v. Boney , 41 N.C. App. 636 ( 1979 )

255 S.E.2d 784 (1979) 41 N.C. App. 636

Paul D. BROWN
v.
Thomas E. (Tom) BONEY.

No. 7815SC641.

Court of Appeals of North Carolina.

June 19, 1979.

Cahoon & Swisher by Robert S. Cahoon, Greensboro, for plaintiff-appellant.

Lassiter & Walker by William C. Lassiter, Raleigh, for defendant-appellee.

HEDRICK, Judge.

The one question presented by this appeal is whether the court erred in directing a verdict for the defendant at the close of plaintiff's evidence. It is an elementary principle of appellate review that the appellant has the burden not only to show error, but also to show that the alleged error was prejudicial and amounted to the denial of some substantial right. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967); Matthews v. Lineberry, 35 N.C.App. 527, 241 S.E.2d 735 (1978); 1 Strong's N.C. Index 3d, Appeal and Error, § 46.1 (1976). Plaintiff has presented for our review a brief containing thirty-nine pages, the overwhelming majority of which contain a restatement of the allegations of his complaint and a recapitulation of the evidence offered at trial. The function of the brief "is to define clearly the questions presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon." Rule 28(a), Rules of Appellate Procedure. Plaintiff, in his brief, has listed several cases but has made no attempt to relate the cases cited to his one assignment of error or to any argument advanced in support thereof. While the appellant's brief is clearly not in accordance with Rule 28 of the Rules of Appellate Procedure, we nevertheless believe that the question raised by the plaintiff's assignment of error merits some discussion, and thus on our own initiative suspend Rule 28 in order to properly consider it. Rule 2, Rules of Appellate Procedure.

In a libel action, the defamatory statements must be false in order to be actionable, and an admission of the truth of the statement is a complete defense. Parker v. Edwards, 222 N.C. 75, 21 S.E.2d 876 (1942). Likewise, with regard to invasion of privacy of the false light variety, it is essential that the matter published concerning the plaintiff is not true, and it is sufficient if the matter published attributes to him characteristics, conduct, or beliefs that are false so that he is portrayed before the public in a false position. Restatement 2d, Torts, § 652E (1977).

If the plaintiff's case is to succeed, he must show that the factual statements made concerning him and his actions were false. This he has failed to do. Indeed, the plaintiff's evidence tends to show the truth rather than the falsity of the statements upon which he bases his claim for libel and his claim for invasion of privacy of the false light category. The statements on which plaintiff primarily relies in this case are within the realm of fair editorial comment which has been accorded a significant measure of protection under the First Amendment. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974), the United States Supreme Court stated:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. [Citation omitted.]

This does not mean, however, that newspapers or other media defendants can escape liability where the evidence discloses the publication of false factual statements under the guise of editorializing. We hold only that the plaintiff's evidence in the present case failed to show any false statements that would entitle him to recover for either libel or invasion of privacy. The trial judge properly directed a verdict for the defendant.

Affirmed.

MORRIS, C. J., and WEBB, J., concur.