Odgers, Libel Slander (6 Ed.), pp. 131-132; Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265; Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505; Gambrill v. Schooley, 93 Md. 48, 48 A. 730. (c) Unless a publication or communication be pleaded plaintiff has stated no cause of action. Dobbin v. Chicago, R.I. P. Ry. Co., 157 Mo. App. 689, 138 S.W. 682; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747. (d) The mere opportunity to read the writing, if it existed, is not sufficient; plaintiff must plead and show that it was read. McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; Steele v. Edwards, 15 Oh. Cir. Ct. 52, 8 Oh. Cir. Dec. 161; Prescott v. Tousey, 18 Jones Spencer (N.Y.) 12, 14. (2) The demurrer was properly sustained because the writing, read as a whole, was not libelous per se and no allegations of special damage were made. (a) To determine whether a writing is libelous per se the writing as a whole must be read and construed. Petty v. Nelson, 170 Mo. App. 17, 155 S.W. 865; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143; Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6. (b) The writing here involved does not constitute defamation.

In our opinion, the evidence with respect to publication is not sufficient to support a finding that anyone other than the plaintiff and the defendant heard the conversation. A mere possibility that someone might have heard the alleged conversation is not enough. Wright v. Credit Co., 212 N.C. 87, 192 S.E. 844; McKeel v. Latham, 202 N.C. 318, 163 S.E. 747. There must be competent evidence from which the jury might find that there was a publication of the alleged slanderous words before the plaintiff is entitled to go to the jury on the issue as to defamation and publication. 33 Am. Jur., Libel and Slander, section 90, page 103; 53 C.J.S., Libel and Slander, section 79, page 127; Hedgepeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R. 232; McKeel v. Latham, supra; Alley v. Long, 209 N.C. 245, 183 S.E. 294; Wright v. Credit Co., supra; Satterfield v. McLellan Stores, 215 N.C. 582, 2 S.E.2d 709; Taylor v. Bakery, 234 N.C. 660, 68 S.E.2d 313. Hence, the action of the court below in refusing to submit to the jury the excluded set of words as a cause of action will be upheld.

While it is not necessary that the defamatory words be communicated to the public generally, it is necessary that they be communicated to some person or persons other than the person defamed. Hedgepeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R. 232; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; 53 C.J.S., Libel and Slander, section 78, page 127; 33 Am. Jur., Libel and Slander, section 96, An examination of plaintiff's complaint discloses that all his allegations with respect to his right to recover compensatory as well as punitive damages, are bottomed on the statement made by Biggerstaff to the various customers of the defendant corporation.

When on the former appeal the judgment of the Superior Court overruling demurrer to complaint was reversed, the provisions of the statute, C. S., 515, as amended, were open to plaintiff to move to be allowed to amend her complaint. Williams v. Williams, 190 N.C. 478, 130 S.E. 113; Morris v. Cleve, 197 N.C. 253, 148 S.E. 253; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; White v. Charlotte, 207 N.C. 721, 178 S.E. 219; Oliver v. Hood, Comr., 209 N.C. 291, 183 S.E. 657; Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580. Under C. S., 515, as amended the plaintiff, upon notice of three days and within ten days after the opinion of the Supreme Court was received by the clerk of the Superior Court, could have made motion to amend. If the motion be not granted, judgment shall be entered dismissing the action.

Leonard v. Maxwell, ante, 89. The court below should have sustained the demurrer to the defendant's further defense under C. S., 2144, with right to move for leave to amend in accordance with the provisions of C. S., 515. White v. Charlotte, 207 N.C. 721, 178 S.E. 219; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; Morris v. Cleve, 197 N.C. 253, 148 S.E. 253. Whether the defendant may be able to allege sufficient facts to bring himself and the transactions referred to within the scope of the statute so as to require withdrawal of the jurisdiction of the courts of the State from an action to enforce a judgment based on prohibited transactions, and whether the North Carolina statute contravenes the full faith and credit clause of the Constitution of the United States (Art. IV, sec. 1), is not presently presented. The demurrer to defendant's counterclaim for damages alleged to have been occasioned by the institution and prosecution of this action was properly sustained.

"To constitute a publication, such as will give rise to a civil action, there must be a communication of the defamatory matter to some third person or persons." McKeel v. Latham, 202 N.C. 318, 162 S.E. 747. In that case it was held that, without regard to the character of the language used, whether libelous or not, the sending of an uncovered post card through the United States mail addressed to plaintiff, is not a publication of the matter contained on the card.

True, it is in evidence that Collins was standing at the door and that Long was sitting with his back to the door and could not see him. Non constat that he was not conscious of his presence. McKeel v. Latham, 202 N.C. 318, 162 S.E. 747. But the case does not stop here.

Non constat that he may not have been an equitable owner of stock. C. S., 219 (a); Corp. Com. v. McLean, 202 N.C. 77, 161 S.E. 854; Darden v. Coward, 197 N.C. 35, 147 S.E. 671; Corp. Com. v. Murphey, 197 N.C. 42, 147 S.E. 667. The complaint is bad as against a demurrer. It is still open to the plaintiff, however, to ask to be allowed to amend his complaint, if so advised. C. S., 515; Morris v. Cleve, 197 N.C. 253, 148 S.E. 253; McKeel v. Latham, 202 N.C. 318, 162 S.E. 747; S. c., 203 N.C. 246, 165 S.E. 694. Reversed.

Defendant appealed from said judgment to the Supreme Court. At the hearing of this appeal, the judgment was reversed. 202 N.C. 318. It was held that the demurrer should have been sustained. At April Term, 1932, of the Superior Court of Craven County, the action was again heard on plaintiff's motion for leave to amend his complaint.

This situation is analogous to the sending of a libelous postcard through the mail, where it has been held that without a showing that the matter was actually communicated to some third person, there is no libel. "An allegation that others had an opportunity to read a libelous writing is not equivalent to an allegation that it was read by them." McKeel v. Latham, 202 N.C. 318, 320-21, 162 S.E. 747, 748 (1932). Plaintiff further argues that there was a republication of the libel beginning in January 1975 when he discovered the report in his file.