BARNHILL, Chief Justice.
The plaintiff does not specify in his complaint the exact language used in the complaint in the Caldwell County case which he alleges constitutes the libelous statements of and concerning him. Nor does he set forth the substance thereof. It is apparent that, instead, he recites his conclusions as to the meaning, force, and effect of the words used by defendant in his complaint and affidavit and in the notice of summons published as substituted service of summons and notice of attachment. He alleges that this defendant in said instruments "accuses this plaintiff of the crime of embezzlement and fraud;" and "accuses this plaintiff of having a scheme * * *" etc. These and like allegations, are patently plaintiff's description of the sense and substance of, or his conclusion as to, the imputations to be attributed to the language actually used.
The declaration or complaint ought to state the libel in the original language. Whitaker v. Freeman, 12 N.C. 271, Fed.Cas. No. 17,527a; Burns v. Williams, 88 N.C. 159; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168.
Be that as it may, the demurrer is not directed to the form of the allegations. On the question here presented for decision the form of the allegations is immaterial. It is made to appear affirmatively on the face of the complaint that the language used by defendant was used in the pleadings and other papers directly connected with and forming a part of a duly constituted judicial proceeding. Therefore, whether the plaintiff pleads the exact language or the substance thereof or merely the innuendoes arising therefrom, the result is the same. The complaint fails to state an actionable wrong.
"The general rule is that a defamatory statement made in the due course of a judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice." (Authorities cited.) See also Annotation 16 A.L.R. 746, 42 A.L.R. 878, 12 A.L.R. 1250; Abbott v. National Bank, 175 U.S. 409, 20 S.Ct. 153, 44 L.Ed. 217.
But plaintiff stressfully contends that the plea of absolute privilege is an affirmative defense which must be taken advantage of by answer and not by demurrer. On this record his contention in this respect is untenable.
The office of a demurrer is to test the sufficiency of a complaint or other pleading. Teague v. Silver City Oil Co., 232 N.C. 469, 61 S.E.2d 345; Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218; McDowell v. Blythe Bros. Co., 236 N.C. 396, 72 S.E.2d 860; Commerce Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Madry v. Scotland Neck, 214 N.C. 461, 199 S.E. 618.
If it is asserted that the complaint is fatally defective and the defect appears on the face of the complaint, that is, that it is wholly insufficient to state a cause of action, the question should be raised by demurrer. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538; Poovey v. City of Hickory, 210 N.C. 630, 188 S.E. 78; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393; Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43; In re York's Will, 231 N.C. 70, 55 S.E.2d 791; McDowell v. Blythe Bros. Co., supra.
"A demurrer is designed to challenge the sufficiency of a complaint which contains the statement of a defective cause of action, McIntosh, N. C. P. & P., 399, 455, and is to be resorted to when the complaint is fatally defective in this respect." Davis v. Rhodes, supra [231 N.C. 71, 56 S.E.2d 45], and cases cited.
In this connection we must bear in mind that a fatal defect in a complaint may consist either of (1) a want of averment of some essential element of plaintiff's alleged cause of action—a defective statement of a good cause of action; or (2) the positive allegation of some fact or combination of facts which affirmatively discloses that plaintiff's supposed grievance is not actionable—a statement of a defective cause of action. Sabine v. Gill, Com'r of Revenue, 229 N.C. 599, 51 S.E.2d 1.
The first may be cured by amendment; the second may not. Davis v. Rhodes, supra.
It comes to this: the plaintiff vouches for the truth of the allegations contained in his complaint. When the defendant demurs thereto, he admits the truth of each and every fact alleged therein and all reasonable factual inferences to be deduced therefrom. Thus, in effect, a demurrer constitutes the complaint a stipulation of facts. If the facts so agreed, liberally construed in favor of the pleader, constitute a cause of action, or if defendant must resort to facts dehors the complaint to make good his challenge, Towery v. Carolina Dairy, 237 N.C. 544, 75 S.E.2d 534, Lamm v. Crumpler, N.C., 81 S.E.2d 138 the demurrer should be overruled. If the plaintiff has failed to allege some essential element of the cause of action upon which he relies, or has affirmatively alleged some particular fact which discloses that he has no maintainable cause of action, the demurrer should be sustained.
Here the plaintiff alleges written statements made by defendant which, nothing else appearing, are libelous in nature. But he also alleges that such statements were made in the complaint and other papers filed in a duly constituted action pending in Caldwell County, and it affirmatively appears on the face of the complaint that such allegations were relevant to the cause of action
Plaintiff cites and relies on Foust v. City of Durham, 239 N.C. 306, 79 S.E.2d 519. But that case is not authority for plaintiff's position here assumed. The complaint there under consideration contained no allegation that the water main described therein was constructed and maintained by the defendant in furtherance of a governmental function. Here the facts alleged do disclose, as a matter of law, that defendant is protected by the rule of absolute immunity. Hence, the alleged libelous statements may not be made the subject matter of an action for damages. The privilege is absolute and the defense is complete.
As the complaint constitutes a statement of a defective cause of action which cannot be made good by amendment, the court properly sustained the demurrer and dismissed the action. Davis v. Rhodes, supra. Therefore, the judgment entered in the court below is