Appeal op DefeNdaNt Westerh UntoN Telegraph CompaNy.
The defendant telegraph company makes the subject of exceptive assignments of error the refusal of the court to sustain its demurrer to the evidence, and to enter a judgment as. in case of nonsuit, *77under C. S., 567. These assignments are untenable. The telegram in suit contained written words that amounted to a charge of incontinency against the plaintiff,'a woman.. C. S., 2432. The telegram was received and delivered by the company to the addressee, Judge Erizzelle. The defendant company defends upon the ground, inter alia, that in so far as it was concerned the telegram was a privileged communication, and that it was free from malice in transmitting the same to the addressee. The allegations to this effect raised the fourth issue submitted to the jury, to which no objection was made, said issue being: “4. Did the defendant, telegraph company, wrongfully and unlawfully transmit and deliver the said message as alleged ?”
The court charged the jury in effect that even though the telegram was libelous on its face, the defendant, being a public service corporation, was required by law to transmit it, provided in so doing it acted in a manner free from malice — in other words, that the telegraph company acted under a qualified privilege, the qualification being that the receiving, sending and delivering of the telegram was Iona fide in the regular course of its business, and free from ill will or malice, and that the burden of proof of want of good faith or of malice was upon the plaintiff. This was in accord with the authorities.
“A telegraph company is not liable for routine transmission of an interstate message, containing defamatory matter, except where transmitting agent knows that message is false or that sender was acting, not in protection of any legitimate interest, but in bad faith and for purpose of traducing another.” 5th syllabus, O’Brien v. Western Union Telegraph Company, 113 Fed. Rep., 2d, 539.
“Where a qualifiedly privileged publication is admitted by defendant, the burden of proof is on the plaintiff to show malice in the publication.” 5th syllabus, Gattis v. Kilgo, 128 N. C., 402, 38 S. E., 931. See, also, Riley v. Stone, 174 N. C., 588, 94 S. E., 434.
Upon a charge free from error, and based upon competent evidence, the jury answered the issue in the affirmative, against the defendant telegraph company.
On defendant telegraph company’s appeal we find
No error.
Appeal op the PlaiNtiep, PheociNe Latham Pabkee.
This appeal is from the judgment in so far as it is predicated upon the answer to the fifth issue, which reads: “5. What actual damage, if any, is thé plaintiff entitled to recover for injury and damage to -character?” and was answered: “$500.00.”
The exceptive assignments of error relied upon by the plaintiff all relate to excerpts from the charge to the effect that the language of the *78alleged libel “Sbe bad an abortion performed on ber by a negro doctor” should not be considered by tbe jury on any issue, since tbe truth of tbe accusation bad been admitted by tbe plaintiff on tbe witness stand, when tbe admission made by tbe plaintiff as a witness in ber own behalf was that sbe “went to this doctor, but I couldn’t bear tbe thought of this colored doctor examining me and I asked him if there was anything that be could give me that I could do and paid him $80.00 and be gave me a rubber tube and we went back home and used it and about two o’clock that night, in tbe presence of Dr. McOlees and Lucy Edwards, I miscarried.” Tbe accusation in tbe telegram was that plaintiff had bad an abortion performed on ber by a negro doctor, and tbe admission made by ber as witness was that sbe went to a negro doctor for tbe purpose of having an abortion performed and sbe purchased a rubber instrument from tbe negro doctor and used it as advised by him and produced an abortion.
Tbe crime which is charged in tbe telegram and tbe crime admitted on tbe witness stand was one and tbe same, namely, an abortion. It is just as much a crime to produce an abortion under tbe advice of and with means furnished by another, as it is to have an abortion performed by another. Tbe gravamen of tbe offense is tbe abortion, or tbe procuring of tbe abortion, and not tbe manner by which it is accomplished. Tbe admission of procuring tbe means to produce an abortion and of tbe abortion was an admission of tbe accusation alleged to have been libelous, and we think, and so bold, that bis Honor was correct in telling tbe jury in effect that since tbe accusation was admitted such accusation should not be taken into consideration as bearing upon any issue. Tbe gravamen of tbe accusation was an abortion, tbe truth of which tbe plaintiff admitted, which admission was a complete defense to any action based upon such accusation. Snow v. Witcher, 31 N. C., 346. “It may be stated as a general rule . . . that a defamatory statement, to be actionable, must be false.” 33 Am. Jur., Libel and Slander, par. 110.
We are of tbe opinion, and so bold, that bis Honor was correct in instructing tbe jury not to consider on any issue tbe charge that tbe plaintiff bad an abortion performed on her.
On plaintiff’s appeal we find
No error.
Stacy, O. J., dissents on appeal of defendant Western Union.