The determinative questions of law presented by the record are:
1. Was the trial judge correct in holding that the conversation on 6 August, 1926, in the private office .of defendant was privileged?
2. Was the conversation between the defendant and the deputy sheriff, Hawkins, on 2 October, 1926, privileged?
3. Must privilege be expressly pleaded where the defendant pleads truth and justification?
With reference to the first cause of action, based upon the conversation of 2 August, the judge charged the jury as follows:
“As to the first occasion, 6 August, 1926, the uncontradicted evidence is that the words were' spoken by the defendant Harvey C. Hines as president of the Harvey C. Hines Company and were spoken to the plaintiff, who at that time was an officer and employee of that company, and were spoken in the presence of other employees of the company in respect to a matter as to which each of them had an interest, and, therefore, the communication was a qualifiedly privileged one and *361no action for damages would lie, therefore, unless tbe words were spoken with actual or express malice, in tbe sense of ill will, grudge, revenge or desire to injure, and as to tbe utterance of 6 August, 1926, there is not sufficient evidence to be submitted to you that Harvey C. Hines was at that time and on that occasion and under those circumstances actuated by express malice, and tbe court having at tbe close of tbe testimony so announced these views as to tbe law, and that it would so charge tbe jury, tbe plaintiff in deference to such intimation of tbe court, took a nonsuit as to tbe cause of action based on tbe alleged slander on 6 August, 1926, and, therefore, that part of tbe case is removed from your consideration and issues are submitted to you now only as to tbe utterance alleged to have been made by tbe defendant, Harvey C. Hines, to Asa Hawkins on 2 October, 1926.”
Tbe foregoing instruction is in accord with authority established by tbe decisions of this Court. Ramsey v. Cheek, 109 N. C., 270; Gattis v. Kilgo, 128 N. C., 402; Gattis v. Kilgo, 140 N. C., 106; Fields v. Bynum, 156 N. C., 413; Beck v. Bank, 161 N. C., 201; Brown v. Lumber Co., 167 N. C., 9; Elmore v. R. R., 189 N. C., 658; Tripp v. Tobacco Co., 193 N. C., 614; Ferrell v. Siegle, 195 N. C., 102; Newberry v. Willis, 195 N. C., 302.
Privilege is a question of law and is to be determined by tbe court. Tbe idea was expressed in Gattis v. Kilgo, 140 N. C., 106, as follows: “Tbe standard of privilege is tbe standard of tbe law,, not of the individual, and tbe privilege depends, not on what tbe individual may have supposed to be bis interest or duty, but upon what a judge decides, as matter of law, bis interest or duty to have been. Tbe court determines what is and what is not privileged.”
The legal distinctions between absolute and qualified privilege are pointed out in tbe decisions. Qualified privilege rests upon tbe fact of interest or duty. That is to say, if tbe speaker of tbe alleged slanderous words has an interest or duty in tbe subject-matter of tbe conversation, and tbe bearer has an interest or duty with respect to tbe subject-matter of tbe conversation, then tbe doctrine of qualified privilege applies-. “If tbe words are actionable per se in 'unprivileged’ slander and libel, falsity and malice are prima facie presumed. If ‘absolutely privileged,’ falsity and malice are irrebuttably negatived, and if it is a case of 'qualified privilege,’ falsity and malice must be proven.” Newberry v. Willis, 195 N. C., 302.
Applying tbe law to tbe conversation of 6 August, 1926, in tbe private office of tbe defendant, it is clear that all parties present bad an interest in tbe subject-matter of tbe conversation. Tbe subject-matter of tbe conversation disclosed by tbe evidence was certain irregularities in handling tbe cash, invoices and other records of tbe business. Tbe *362plaintiff' bad an interest in these transactions because be was tbe treasurer of tbe company and charged with tbe duty of preserving tbe property and records of bis employer. Walters, who was present, bad an interest in tbe subject-matter of tbe conversation because be was vice-president of tbe company. Weise bad an interest because be was bead bookkeeper and charged with the duty of preserving tbe records and property of bis employer. Small bad an interest because be was in charge of tbe business at night, and it was likewise bis duty to preserve and properly account for invoices and property of bis employer coming into bis bands. Certainly tbe defendant Hines, as president of tbe corporation and as tbe active bead of its transactions, bad an interest in tbe subject-matter of tbe conversation and was in like manner charged with tbe duty of preserving tbe property and records of tbe corporation. Moreover, there was no evidence of such malice as tbe law recognizes as sufficient to overthrow tbe qualified privilege of tbe occasion because tbe plaintiff testified that tbe relations between him and the defendant bad been close, friendly and cordial up to tbe very moment of tbe conference.
Therefore, we bold that tbe trial judge ruled properly in excluding tbe first cause of action from consideration by tbe jury.
Tbe second cause of action involves tbe conversation between tbe defendant and a deputy sheriff. Tbe evidence discloses that tbe conversation took place before daybreak at tbe defendant’s borne, and that be was presumably called from bis bed by tbe officer and apprised of tbe fact that a trusted employee, to wit, one Small, was under arrest, and that certain property of tbe defendant corporation bad been found in tbe woods where Small bad been. Tbe conversation between tbe deputy sheriff and tbe defendant is not clearly expressed in tbe evidence, but tbe unmistakable inference from tbe words used compel tbe conclusion that tbe officer intended to suggest to tbe defendant that Small was tbe party responsible for tbe shortage in tbe business. Small was one of tbe persons present at the conference between tbe plaintiff and tbe defendant on 6 August, and was at tbe time of tbe officer’s visit a trusted employee of tbe defendant corporation and in charge of its property and records during tbe night time. Tbe bald intimation made to tbe defendant by tbe officer was that Small and not tbe plaintiff was guilty of misappropriation, if such bad occurred.
In this situation, what was the defendant to do? Should be stand mute or should be reply to tbe accusation thus made? He chose to speak tbe words set out in tbe record. It is to be assumed that tbe officer approached tbe defendant in tbe dead hours of tbe night in good faith, and for tbe sole purpose of bringing tbe wrongdoer, whoever be was, to account. He was employed by tbe State for that exclusive pur*363pose. Thus the officer had an interest in the occasion. The defendant likewise had an interest in the subject-matter of the conversation and was charged with a duty with reference to the accusation made by the officer.
The courts and textwriters have discussed the question as to whether a communication to such officers, made in good faith and without malice, is justified under the doctrine of qualified or absolute privilege. See Stevens v. Allen, 15 A. L. R., 245; Shinglemeyer v. Wright, 124 Mich., 230, 50 L. R. A., 129; Parker v. Kilpatrick, 126 Atlantic, 825. In the Parker case, supra, the Supreme Court of Maine holds that words spoken to a police officer, peace officer, or deputy sheriff, either for the detection of crime or for the protection of his own property, if made in good faith and without malice, are privileged. To like effect áre the words quoted in the case of Logan v. Hodges, 146 N. C., 38, as follows: “"Words charging a party with theft, spoken in good faith, under a belief of their truth and with probable cause, to a police officer employed to detect the robber, are in the nature of a privileged communication.” As all police officers and sheriffs are employed by the State to detect crime, it is not apprehended that they should be specifically employed by a particular individual in order to permit him to claim the protection of qualified privilege.
Applying the accepted principles of law to the facts disclosed, we are of the opinion and so hold, that the conversation of 2 October, 1926, was subject to the defense of qualified privilege, and, therefore, we deem the ruling of the trial judge to the contrary, as erroneous.
The third question of law involves the question as to whether privilege must be specifically pleaded. O. S., 542, expressly provides that a plea of justification and mitigating circumstances may be set up in the answer as a defense to an action for slander. Apparently the statute contemplated that privilege was a form of justification. Certainly in the forum of reason justification is a general term broad enough to cover both truth and privilege. At any rate the facts from which the privilege springs are set forth in the answer. The plaintiff relies upon Gudger v. Penland, 108 N. C., 593, but an examination of that decision discloses that the court had in mind the allegations of the complaint rather than defenses required to be set up in the answer, and we do not deem this case decisive of the question.
Questions of the admissibility of evidence and exceptions to the charge of the court have been debated in the briefs, but as a new trial must be awarded for the reason hereinbefore set out, we do not discuss or decide the points of law raised by said exceptions.
Plaintiff’s appeal: No error.
Defendant’s appeal: New trial.