Supreme Court of South Carolina, 1927

Rivers v. Florence Printing Co.

Supreme Court of South Carolina · Decided October 7, 1927 · Carter, Watts, Messrs, Coth-Ran, Brease, Stabeer

139 S.E. 781; 141 S.C. 364; 1927 S.C. LEXIS 83 (South Eastern Reporter)

Counsel

Mr. W. Stokes Houck , for appellants, cite: Court should not countenance effort on part of plaintiff to impute from language used a violation of Sec. 372, Code: 129 S.C. 242 . Publication was a privileged communication: 25 Cyc., 275, 385; 17 R.C.L., 341; 34 Atl., 865. Unless libelous per se there must be allegations of special damages, otherwise demurrer will be sustained: 5 A.L.R. Ann., 1349: "Action . Mr. D.E. Ellerbe , for respondent, cites: Demurrer admits publication of the alleged libelous matter, its falsity and presence of malice: 17 R.C.L., 398. In order for matter to be libelous per se it is not necessary that it charge the commission of a crime: 71 S.C. 116; 77 S.E., 54.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Carter.

This action' by the plaintiff W. W. Rivers, against the defendants Florence Printing Company, a corporation, and J. ,B. Parnell is a suit for $10,000 damages on account of certain alleged libelous matter published in the Morning News Review, a newspaper published by the defendant Florence Printing Company. The defendants demurred to the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

The matter came on for a hearing before his Honor Judge Shipp, who issued an order overruling the demurrer and giving unto the defendants 20 days within which to answer the complaint. From this order the defendants have appealed to this Court. The complaint, demurrer, order, and exceptions will be reported.

In view of the full discussion of the law governing this case in the recent decisions of this Court (see Burn v. Evening Post, 140 S. C., 21; 138 S. E., 520; Murphy v. News and Courier, 139 S. E., 189, 141 S. C., 51; and Duncan v. Record Publishing Co., et al., filed September 21, 1927), we consider it unnecessary to enter into a discussion of the law at this time. Bearing in mind the principle that, for the purpose of consideration of a demurrer, the demurrer admits as true allegations of the complaint, and giving to the allegations the liberal construction to which *370 they are entitled under the rule, we are clearly of the opinion that the complaint states a cause of action.

Appellants take the position that the demurrer should have been sustained on the ground that “the communication was qualified privileged and made on an occasion which commanded the publication of the same,” citing as authorities for this position 25 Cyc., 275 and 385, and 17 R. C. L., 341. The defendants cannot get the benefit of the defense “qualified privilege” without setting it up as an affirmative defense.

The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

Mr. Chief Justice Watts and Messrs. Justices Coth-ran, Brease and Stabeer concur.

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