Summary
In Connelly, the South Carolina Supreme Court held that, when a complaint charged two defendants jointly with the composition and publication of an allegedly libelous editorial, the defamation suit could be brought in the county of either defendant and therefore that the trial court did not err in refusing to transfer the case from the county of one defendant to the county of the other.
Summary of this case from Grayson v. AndersonOpinion
12722
August 21, 1929.
Before JOHNSON, J., Allendale, April, 1928. Affirmed.
Action by E.G. Connelly against the State Company and another. From an order denying a change of venue, the defendant named appeals.
The complaint is as follows:
"The complaint of the above-named plaintiff respectfully shows to the Court:
"(1) That the plaintiff is a resident and citizen of Allendale County, S.C. and is now and was at the time hereinafter mentioned chief commissioner of the said county, and had charge and control of the chaingang of said county.
"(2) That the defendant John F. Weekly is now and was at the time hereinafter mentioned a resident and citizen of Allendale County, residing near Ulmers, S.C.
"(3) That the defendant, the State Company, is now and was at the times hereinafter mentioned a corporation created and existing under the laws of the State of South Carolina, and was and is the proprietor and publisher of a certain daily newspaper known as The State, published in the City of Columbia and circulated throughout the State of South Carolina, including the County of Allendale. That on or about the 10th day of November, 1927, under that date, the defendants jointly composed and published in the said newspaper, concerning the plaintiff, an editorial, in the following words, to wit:
"`WHAT THE GOVERNOR CAN DO"`Recurring to the subject of chaingangs in South Carolina (a by no means sweetly perfumed subject), The State has a letter from a citizen of Ulmer, South Carolina, in which he wishes the "medal of merit" suggested for a convict on the Aiken chaingang, in a satirical editorial in this newspaper, conferred upon some official of the Allendale County chaingang.
"`According to the writer of this letter, a young Negro recently returned to the county from the asylum for the insane in Columbia was convicted before a Magistrate of stealing chickens and sentenced to the chaingang. The convict was of "a low order of intelligence" and the Magistrate is said to have notified chaingang officials that this prisoner did not have "very good sense and was liable to give them trouble, but they must not hurt him." In a week or two the convict decided to walk off; he did walk off and was making for his father-in-law's house where his wife and child were, when the half-wit was shot down with buckshot, thrown into an automobile and taken back to camp where he died and was buried.
"`Because of certain statements in the letter it cannot be published, but it is being sent to the Governor of South Carolina. This particular case is out of the Governor's hands and he can do nothing in regard to it but he CAN do a great deal to improve conditions on chaingangs in South Carolina so that this commonwealth may be spared the humiliation of standing before a supposedly civilized and Christian country as actually sponsoring lawlessness, brutality — and worse.
"`Here is a camel, not a gnat.'
"(4) That in and by the said editorial the defendants intended to charge and did charge the plaintiff with conduct, in and about the matters set out in said editorial, amounting to lawlessness, brutality, and worse, and with the crimes of homicide and murder; that the said editorial was read by numerous persons in said State and county, and was so understood by them.
"(5) That the statement made in said editorial and the charges thereby made and intended to be made against and concerning the plaintiff were and are false, malicious, defamatory, and libelous, and were made willfully and maliciously and with an utter and wanton disregard of the plaintiff's rights, to the plaintiff's great injury and damage in the sum of fifty thousand ($50,000.00) dollars.
"Wherefore plaintiff demands judgment against the defendants jointly and separately in the sum of fifty thousand ($50,000.00) dollars."
The order of Circuit Judge Johnson follows:
"This is an action in which the defendants are charged jointly with the composition and publication of a libelous article in the form of an editorial appearing in The State. The defendant, the State Company, owner of The State, makes this motion for a transfer of the case against it from Allendale County to Richland County, upon the ground that, while its codefendant, John F. Weekly, is a resident of Allendale County, the State Company is a resident of Richland County, and the action should have been brought in Richland County, because the defendant, Weekly, did not jointly, with the State Company, compose and publish the alleged libelous article. The motion is made upon the complaint, but later the defendant, the State Company, gave notice that it would use certain affidavits in support of said motion, and no objection is made by plaintiff to the use of these affidavits and the consequent change in the grounds of the motion. The plaintiff, in the way of meeting the showing of the defendant the State Company, caused to be produced at the hearing of the motion a certain newspaper of the defendant company, published some time prior to November 1, 1927, containing the editorial referred to in a certain letter of John F. Weekly, dated November 1, 1927, and also the said letter of Weekly addressed to editor of The State.
"The motion was heard by me at Allendale, and I took the matter under consideration.
"The contention of the defendant, the State Company, is that the pleadings, containing the editorial complained of, the affidavits offered on its behalf, and the said letter of Weekly, together with the editorial therein referred to, all show that no cause of action exists against Weekly for the composition and publication of the editorial complained of, and certainly no cause of action in which the two defendants are jointly liable.
"The plaintiff, on the other hand, contends that Weekly is liable for the composition and publication of the editorial in question upon the ground that he procured and participated in the composition and publication of said editorial.
"At the hearing, I was at first very much impressed by the position taken by the State Company, but, after hearing full argument from both sides and after investigation of the authorities, I have, upon more mature deliberation, concluded that the position of the defendant, the State Company, on this motion cannot be sustained.
"In consideration of this motion, I, of course, do not intend to and do not pass upon the merits of the case in any such manner as to be binding upon any of the parties to the action except for the purpose of this motion.
"It appears to me that the letter written by Weekly to the editor of The Stateon November 1st, contains all of the matter alleged to be libelous, which is set forth in the editorial complained of. What appears in the editorial appears also in substance in the letter. Therefore, only two questions are involved in this motion, which are: First, Is Weekly liable at all if the allegations of the complaint are proven? And, second, if the allegations of the complaint are proven, is such liability on the part of Weekly joint with the alleged liability of the State Company? The authorities, in my opinion, require that both of these questions be answered in the affirmative. Some of these authorities are:
"First question: Is Weekly liable if the allegations of the complaint are proven?
"In Weekly's letter he refers to a prior editorial, concerning a `medal of merit' published in The State and says: `I wish to ask that you also include Allendale County in this medal of merit business' — and latter in the letter: `I feel like Allendale County should be included in the medals of merit as well as Aiken County. I wrote the Governor about this matter, but he did not reply to my letter and if he made any investigation I have never heard of it. Please when you write this up leave my name out of it.'
"From the foregoing it is plain that Weekly, having in mind the prior editorial, was asking The State to publish another editorial including Allendale County in `the medal of merit business.' The State complied with Weekly's request to leave his name off, and the alleged libelous publication appeared in its editorial column, the same place in which the medal of merit article on Aiken County had appeared, and, as above stated, the letter contained all of the libelous matter that appeared in the editorial of November 10th, herein complained of.
"Upon this statement of facts, as they have been shown for the purpose of this motion, the defendant, Weekly, appears to be liable for the publication under the following authorities:
"Newell, Slander and Libel, § 176: `What amounts to a publication. It is not necessary that the publication of a libel should be effected solely or directly by the author of it personally. For if a person having printed or written a defamatory statement, parts with it in order that its contents may become known, or if a person communicates to a third person a libel hitherto unknown, either proceeding will amount to a publication by the former. The legal maxim applicable to such cases is the well-known one, qui facit per alium facit per se: he who does a thing by the instrumentality of another does it by himself — a rule expressive of the force of agency, and adopted alike by the criminal and the civil branches of our law.'
"In the South Carolina case of Woodburn v. Miller, Cheves, 194, it is held that the delivery of a libelous article by the author to the editor of a newspaper for insertion constitutes a publication by the author upon the ground that he thereby procured its publication.
"In 17 R.C.L., 385, it is shown that it is not the composition of a libelous article that makes its author liable for its publication, but that it is his procurement of publication which renders him liable, and there it is said: `The rule seems to be well settled that any person procuring the publication of a libel in a newspaper is responsible therefor, and it is not necessary, in order to hold him liable, to show that he participated in printing, publishing or even in writing the defamatory matter. But a contributor to a publication is not responsible for matter inserted by the publisher, moreover, while the author of a libel which has been published in a periodical is generally answerable therefor equally with the proprietor, he is not liable merely because he is its author. One who composes a libel does not thereby commit any actionable wrong. It is only when his act causes its publication that he commits an actionable wrong and becomes responsible for its consequences. It need not, however, be shown by direct evidence that the author of a libel procured its publication, if it appears that he did that from which his desire for or his assent to the publication may be presumed. For instance, if he sends manuscript to the publisher of a periodical, and the latter prints either the whole thereof or a part only, the author must be regarded as guilty of the publication, and held responsible accordingly.'
"Procuration is publication. In note, Ann. Cas., 1914-C, page 981, it is said: `It is argued that appellant's participation in publication of the alleged libel is not sufficiently established. "Every one who requests or procures another to write, print, or publish a libel, is answerable as though he wrote, printed, or published it himself." Odgers, Libel and Slander (5th Ed.), 168. "The mere delivery of a libel to a third person by one conscious of its contents amounts to a publication." Id., 165. Instances illustrating the application of this general rule may be found in 25 Am. Eng. Enc. of Law, 820, 821, 27 Am. Eng. Enc. of Law (2d Ed.), 1056, where a telegraph company is held responsible for publishing a libel in transmitting a telegram from the sender to the person addressed. Also Monson v. Lathrop, 96 Wis. 386, 71 N.W., 596, 65 Am. St. Rep., 54; Peterson v. Western Union Tel. Co., 65 Minn., 18, 67 N.W., 646, 33 L.R.A., 302. In Loibl v. Breidenbach, 78 Wis. 49, 47 N.W., 15, it is held that one who negligently signs a libelous article without knowing its contents and delivers it to the person who wrote it without any direction restricting the use to be made of it, is responsible for the publication thereof by the person to whom it is delivered, where the article shows on its face that it is intended for publication. Participation in publishing a libel is participation in the commission of tort, and the old and well-known rule is that all who aid, advise, countenance, or assist the commission of the tort are wrongdoers.'
"From the foregoing I hold, for the purpose of this motion, that the showing before me indicated liability on the part of Weekly for the publication of this editorial, if the allegations of the complaint are proven.
"Second question: Is such liability joint with that of the State Company?
"In Newell, Slander and Libel, § 187, it is said: `In all cases of joint publication each defendant is liable for all the ensuing damage. The proprietor of a paper sued jointly with his careless editor or with the actual composer of the libel cannot compel either of his co-defendants to repay him the damages which he has been compelled to pay.'
"In the same work (Section 336, title, `Joint Defendants'), it is said: `But with libel it is different; the publication of a libel may be joint act of two or more persons, who may in such case be sued either jointly or separately at the election of the plaintiff. Thus, if a master and servant jointly published a libel, they might always have been jointly sued in the same action. But if there were two distinct publications of the same libel, one by A. separately, the other by B., two actions must be brought — one for each publication.'
"In 17 R.C.L., 379, it is said: `Liability as Joint or Several. — As the publication of a libel may be the joint act of two or more persons, it seems that as a rule they may be sued either jointly or severally at the election of the injured person. For example, where in pursuance of a previous proposal between them one person writes a letter containing a libel which another assists in composing, after which it is sent by mail to the person to whom it is addressed, it has been held that the two are jointly liable.'
"See, also, 37 C.J., 20, § 323.
"Publication does not necessarily lie in authorship or in the ownership of the printing press, etc., and, if all defendants worked for a common end, accomplished by the publication, they are jointly liable. Finnish Temperance Society v. Publishing Co., and others, 219 Mass. 28, 106 N.E., 561, 562, Ann Cas., 1916-D, 1087. In this case plaintiff sought an injunction against the publishing company, a straw corporation owning the publishing company, and a wealthy corporation controlling the straw corporation through an interlocking of stockholder and directors against the publication of libelous statements in regard to the plaintiff.
"The injunction was refused on well-recognized grounds, wherein the Court pointed out that the plaintiff had an adequate remedy at law by suing for damages and the judgment would be good because not only the straw corporation and publishing company could be sued, but likewise the wealthy corporation also, and concerning that point the Court says: `The essence of the defamation is the malicious publication of the libelous language, and does not necessarily lie in the authorship of the articles or the ownership of the press which printed them. People v. Miller, 122 Cal., 84, 54 P., 523. If the defendants all worked for a common end which they accomplished by the publication of the libels they are liable jointly as well as severally. Patten v. Gurney, 17 Mass. 182, 186, 9 Am. Dec., 141; Miller v. Butler, 6 Cush. [Mass.], 71, 74, 52 Am. Dec., 768. It also is plain that if the trial in an action at law discloses that the first company is merely the creature or mouthpiece of the second company, its corporate form does not prevent the plaintiff from reaching the real offender, and actual instigator of the defamatory attacks. Ginn v. Almy, 212 Mass. 486, 505, 506, 99 N.E., 276, and cases cited.'
"Transmission of telegram by telegraph company constitutes a publication in which both the company and the author of the telegram participated, and for which they are jointly liable. Monson v. Lathrop, 96 Wis. 386, 71 N.W., 596, 65 Am. St. Rep., 54.
"In this case, Lathrop and the Western Union Telegraph Company were sued jointly for publication of a libel, accomplished by delivery of a telegram by Lathrop to the Western Union for transmission over its lines and such actual transmission by the defendant, Western Union, during which the libel was thereby published to the employees of the Western Union.
"Under the demurrer in this case, the point for decision was whether or not a cause of action was stated against Lathrop. However, the decision well sets out the law on joint liability for libel: `It is contended that the complaint seeks to charge the two defendants jointly with the publication of the libel, and that it is insufficient for that purpose, and hence, that the demurrer should have been sustained. Certainly, there are authorities holding that a telegraph company may be held liable for sending libelous messages; Whitfield v. South Eastern R. Co., 96 Eng. Com. L., 113; E1. B. E., 115; Peterson v. Western Union Tel. Co., 65 Minn., 18, 67 N.W., 646, 33 L.R.A., 302. However this may be, it is well settled that the publication of a libel may be the joint act of two or more persons, who may, in such a case, be sued either jointly or separately, at the election of the plaintiff. But for two distinct publications of the same libel, one by A. separately, the other by B., two actions must be brought, one for each publication. But the plaintiff is not obliged to join as a defendant every person who is liable. He may sue only one or two, and the liability of the others will be no defense for those sued, or mitigate the damages recoverable; Newell on Defamation, Slander and Libel, § 42, page 382; Odgers on Slander and Libel, 440, 441. The demurrer raises no objection to the complaint on the ground that several causes of action are improperly united, and hence, under the Statute, any such objection must be deemed to have been waived; Rev. Stats., 2654. It is therefore immaterial, under the authorities cited, whether the complaint charges both defendants with jointly publishing the libel. The real question is whether it states a cause of action against the defendant Lathrop.'
"Where the defendants assist each other, each is responsible for the acts of the other, and the publication is joint.
"Miller v. Butler, 6 Cush. [Mass.], 71, 52 Am. Dec., 768. While no newspaper was concerned in this case, the reasoning of the Court is applicable in the case at bar. From decision: `The evidence of publication was quite sufficient to authorize the jury to find that fact as against both defendants. The letter to Bartlett was written by Jencks, Butler assisting in composing it, and written in pursuance of a previous proposal made by one or the other. It was then sent by mail to Bartlett. Both parties to the transaction were engaged in a common object, and the acts of one are to be taken to have been done by both, as to the legal effect attached to them: 2 Greenl. Ev., Sec. 416.'
"Joint publication and consequent joint liability may be predicated upon the relationship of master and servant, or upon that of principal and agent.
"As to the relationship of master and servant, see Nunnamaker v. Smith's, 96 S.C. 294, 80 S.E., 465, 466, where it is said: `Where a wrong complained of is done by a corporation which can act only through an agent, then the wrongful act is the joint act of the corporation and the agent, and both may be sued in one action. See Schumpert v. Southern Railway, 65 S.C. 338, 43 S.E., 815, 95 Am. St. Rep., 802. "`When one person invests another with authority to act as his agent for a specified purpose, all of the acts done by the agent in pursuance or within the scope of his agency are and should be regarded as really the acts of the principal. If therefore the agent, in doing the act which he is deputed to do, does it in such a manner as would render him liable for exemplary damages, his principal is likewise liable, for the act is really done by him.' By legal intendment and effect the act of a servant within the scope of his agency is the act of the master. In such case there is a legal identification of the master and servant." Here the words and acts complained of were one and the action is one.'
"As to the relationship of principal and agent, see the United States Supreme Court decision in Washington Gaslight Co. v. Lansden, 172 U.S. 534, 19 S.Ct., 296, 43 L.Ed., 543, where, in holding that a person who furnished the editor with the information upon which the libelous article appearing in the newspaper was based was or could be responsible under the proof as a publisher, it says: `We think that the defendant might be held liable for such publication on the ground that it was published by his aid and procurement and substantially by his agent.' The matter of joint liability was not there being considered, but, of course, if the author is the principal and the printer is his agent, then the principal is jointly liable with the agent for acts done within the scope of such agency.
"In Newell, Slander and Libel, § 193, it is said: `Publication — When by Agent. Every one who requests, procures or commands another to publish a libel is answerable as though he published it himself. And such request need not be expressed, but may be inferred from the defendant's conduct in sending his manuscript to the editor of a magazine, or making a statement to the reporter of a newspaper, with the knowledge that they will be sure to publish it, and without any effort to restrain their so doing. And it is not necessary that the defendant's communication be inserted verbatim, so long as the sense and substance of it appear in print. This rule is of great value in cases where the words employed are not actionable when spoken, but are so if written. Here, though the proprietor of the newspaper is of course liable for printing them, still it is more satisfactory, if possible, to make the author of the scandal defendant, and if he speak the words under such circumstances as will ensure their being printed, or if in any other way be requests or contrives their publication in the paper, he is liable in an action of libel as the actual publisher. Qui facit per alium facit per se.'
"My attention has been called by counsel for the State Company, to the cases of Howe v. Bradstreet Co. et al., 135 Ga. 564, 69 S.E., 1082, Ann. Cas., 1912-A, page 214. This is clearly a case of republication and not joint publication. However, following that decision, in Annotated Cases, there is a note of joinder of defendants in an action for libel in which the reason for allowing a joinder of parties participating in the publication is given as follows: `The reason for this rule is that there is but one complete wrong, which is the joint act of all of the publishers.'
"In the recent North Carolina case of Lewis v. Carr et al., 178 N.C. 578, 101 S.E., 97, 98, it is held, quoting from syllabus: `Where the three defendants, a newspaper proprietor and two bank officials, had a common purpose and acted together in preparing an article and affidavit libelous toward the chairman of the county board of education, there is no ground to divide the chairman's action against them, or to dismiss it for misjoinder of parties-defendant.'
"In the instant cause, it is manifest from the complaint herein that the one complete wrong charged therein as being the joint act of the defendants is the insertion of the alleged libelous article in the columns of the newspaper. The delivery by Weekly to The State of his letter of November 1st is not the `publication' complained of in the complaint. The composition and publication, by the delivery of that letter to the editor of The State might constitute the subject of an independent several action against Weekly, for which he alone would be liable, but plaintiff has, thus far at least, elected to ignore such prior, individual `publication.' The one complete wrong, complained of in the complaint, is the alleged joint publication of the `editorial, in which both defendants, it is contended, took an active and material part — Weekly, by furnishing the information and procuring the publication, the State Company by revamping Weekly's material for publication in editorial form, furnishing the printing press, etc., actually doing the printing, and publishing the substance of the matter which Weekly, to all intents and purposes, requested it to publish. It thus appears, from the showing made before me, that the legal effect of the conduct of the defendant is that both of them participated in the composition and publication of the alleged libelous editorial, and that such liability as exists therefor is joint.
"It is therefore ordered that the motion of the defendant, the State Company be, and the same hereby is, refused. Let all papers upon which the motion was heard be filed with the Clerk of this Court."
The exceptions follow:
"(1) His Honor, the Circuit Judge, erred in refusing the motion of the defendant, the State Company, for a change of venue and in holding that, under the complaint and the exhibits herein, a cause of action exists against the defendant, John F. Weekly, for the composition and publication of the alleged libelous editorial; the error being:
"(a) His Honor, the Circuit Judge, should have held that there was no showing that the alleged libelous editorial was composed and published by the defendant, John F. Weekly, but, on the contrary, a definite showing that said editorial was composed and published by the defendant, the State Company.
"(b) His Honor, the Circuit Judge, should have held that, inasmuch as the letter of the defendant, John F. Weekly, was not published, the defendant, the State Company, in writing its editorial, made the language appearing therein its own for which it alone can be held responsible.
"(2) His Honor, the Circuit Judge, erred in refusing the motion of the defendant, the State Company, for a change of venue and in holding that, under the complaint and the exhibits herein, a joint cause of action exists against the defendants, John F. Weekly and the State Company; the error being:
"(a) His Honor, the Circuit Judge, should have held that, under the complaint and the exhibits herein, there was no showing of a combination or concerted action by the two defendants in composing and publishing the alleged libelous editorial, and in consequence thereof no joint liability.
"(b) His Honor, the Circuit Judge, should have held that the act of the defendant, John F. Weekly, in writing his letter to the editor of The State did not amount to a procuration or a participation in the publication thereof so as to make the defendants herein jointly liable.
"(c) His Honor, the Circuit Judge, should have held that the act of the defendant, John F. Weekly, in writing said letter and the act of the defendant, the State Company, in composing and publishing its alleged libelous editorial were separate, distinct, independent, disconnected acts for which each defendant is severally responsible."
Messrs. Elliott, McLain, Wardlaw Elliott, and Brown Bush, for appellants, cite: Jurisdiction: Secs. 377, 382, Code Proc.; 112 S.C. 128; 116 S.C. 29; 110 S.C. 334. As to joint and several liability: 86 Ill., 147; Cheves, 194; 38 Cyc., 483; 69 S.E., 1082; Ann. Cas., 1912-A, 214; 74 Pa. St., 65; 52 Am. Dec., 786; 101 S.E., 97; 23 N.E., 802; 52 N.Y.S., 450; 65 A.S.R., 54; 96 S.C. 294; 172 U.S. 534.
Messrs. R.P. Searson, J.M. Patterson, and Thos. M. Boulware, for respondent, cite: Joint liability: 2 Greenleaf on Ev., 416; 43 L.Ed., 453.
August 21, 1929. The opinion of the Court was delivered by
This action, in which the defendants, the State Company and John F. Weekly, are jointly charged by the plaintiff, E. G. Connelly, with the composition and publication of an alleged libelous editorial appearing in The State, a newspaper published by the defendant, the State Company, in the City of Columbia, S.C. was commenced in the Court of Common Pleas for Allendale County, April 26, 1928. The case comes before this Court on appeal by the defendant, the State Company, from an order of his Honor, Judge J. Henry Johnson, refusing a motion of the defendant, the State Company, to transfer the case against that defendant from Allendale County to Richland County. The motion was made upon the ground that, "while the defendant, John F. Weekly, is a resident of Allendale County the defendant, the State Company, is a resident of Richland County, and the action should have been brought in Richland County, because the defendant Weekly, did not jointly with the State Company compose and publish the alleged libelous editorial." In passing upon the motion his Honor, Judge Johnson, considered the allegations of the complaint, the editorial in question, and certain affidavits, also a letter written by the defendant, Weekly, to which reference is made in the order issued by his Honor, Judge Johnson, in refusing the motion.
After careful consideration, we have reached the conclusion that, for the reasons stated in the order of Judge Johnson, the motion to transfer was properly refused. In reaching this conclusion, we, of course, express no opinion as to the merit or demerit of the case, and no findings of the facts alleged. We simply hold that, under the showing made, considered in the light of the law of this State governing such matters, it was the duty of Judge Johnson to refuse the motion to transfer the case from Allendale County to the County of Richland.
The exceptions are therefore overruled, and it is the judgment of this Court that the order appealed from be, and the same is hereby, affirmed.
NOTE: Let the complaint, the order of Judge Johnson, and the exceptions be reported.
MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER, and MR. ASSOCIATE JUSTICE GRAYDON concur.