Harris v. Procter & Gamble Manufacturing Co. , 102 N.C. App. 329 ( 1991 )

401 S.E.2d 849 (1991)

Basil S. HARRIS, Plaintiff,
v.
The PROCTER & GAMBLE MANUFACTURING COMPANY, Defendant.

No. 9018SC840.

Court of Appeals of North Carolina.

March 19, 1991.

Romallus O. Murphy, Greensboro, for plaintiff, appellant.

Smith Helms Mulliss & Moore by Martin N. Erwin and Michael A. Gilles, Greensboro, for defendant, appellee.

HEDRICK, Chief Judge.

Plaintiff's sole argument on appeal is that the trial court erred in granting defendant's motion for summary judgment. Plaintiff argues the evidence shows that a genuine issue of material fact existed and therefore, defendant is not entitled to judgment as a matter of law. We disagree.

Plaintiff concedes that defendant was entitled to a qualified privilege concerning the communication that plaintiff had been discharged. However, plaintiff argues defendant exceeded the scope of his qualified privilege by communicating the details of his discharge to all employees in the Greensboro facility and those away at the Cincinnati facility.

"Summary judgment is the device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Johnson v. Insurance Co., 300 N.C. 247, 252, 266 S.E.2d 610, 615 (1980); N.C.R.Civ.P. 56. In determining whether summary judgment is proper, the court must view the evidence in the light most favorable to the non-moving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. Freeman v. Development Co., 25 N.C.App. 56, 212 S.E.2d 190 (1975).

A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest.

Stewart v. Check Corp., 279 N.C. 278, 285, 182 S.E.2d 410, 415, (1971), quoting, 50 Am.Jur.2d Libel and Slander section 195 (1970).

The essential elements for the qualified privilege to exist are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and to proper parties only. Id. Even though a qualified privilege may provide a defense to a defamation action, if this privilege is found to be abused, it ceases to exist. Alpar v. Weyerhaeuser Co., 20 N.C.App. 340, 201 S.E.2d 503, cert. denied, 285 N.C. 85, 203 S.E.2d 57 (1974).

"The qualified privilege may be lost by proof of actual malice on defendant's part or by excessive publication." Id. 20 N.C.App. at 346, 201 S.E.2d at 508. The evidentiary matter offered in support of the motion for summary judgment discloses, and plaintiff concedes, that the defendant had a qualified privilege with respect to communications concerning plaintiff's discharge. Plaintiff did not show actual malice nor excessive publication merely by presenting evidence that the defendant told all facility employees about his dismissal and facts relating to his dismissal. Once defendant had offered evidence disclosing the qualified privilege the burden was on plaintiff to offer some evidence that the publication was malicious or excessive.

Plaintiff has offered nothing to raise a genuine issue of material fact with respect to malice or excessive publication. Summary judgment for the defendant was proper and will be affirmed.

Affirmed.

Judges COZORT and LEWIS concur.