Opinion
15729
April 2, 1945.
Before JOHN S. BOWMAN, County Judge, Orangeburg County, November, 1944. Affirmed.
Action by McKesson Robbins, Inc., against I.E. Newsome and his Wife, Inez F. Newsome, to recover a sum of money due Plaintiff for merchandise sold to Newsome, in which the Complaint set out allegations charging collusion and fraud, in that Newsome had conveyed property to his Wife allegedly to defraud his future creditors, of whom the Plaintiff was one. In addition to a general denial as a first defense, the Defendant set up as a Second Defense and By Way of Counterclaim, a claim for damages for libel. From an Order striking out certain paragraphs of her Second Defense and Counterclaim, Inez F. Newsome appeals.
The Complaint, together with the Second Defense and Counterclaim in the Answer of Inez F. Newsome, ordered to be reported, follow:
McKesson Robbins, Inc., a corporation existing under the laws of one of the United States of America other than South Carolina, with one of its principal places of business at Columbia, South Carolina, plaintiff, brings this of its complaint against I.E. Newsome and Inez F. Newsome, his wife, both of Branchville, in Orangeburg County. South Carolina, defendants, and alleges as follows:
1. That on or about the 25th day of April, 1939, and the 23d day of May, 1939, the defendant I.E. Newsome bought of the plaintiff and the plaintiff sold and delivered to the said defendant certain merchandise amounting to the total sum of $345.71; that of the said sum no part of it has ever been paid and all of it remains long past due and owing although repeated demands for payment have been steadfastly made. A sworn and itemized statement of the account is attached hereto and made a part of this complaint.
2. That there is no property returned in the name of I.E. Newsome for taxation in Orangeburg County and should this Court grant judgment in favor of the plaintiff against the said I.E. Newsome, defendant, there is no known property in the name of this defendant on which execution can be made; that in the name of Inez F. Newsome, a defendant herein, the following property is returned for taxation in Orangeburg County, to wit: one 1940 Ford Bus; one 1938 Ford Bus; another 1940 Ford Bus; one 1935 Ford Bus; one 1941 Ford Bus; one 1936 Ford Bus; one 1941 Ford Automobile; one 1939 Ford Truck; one 1936 Ford Truck; and three lots and two buildings in the Town of Branchville; that on or about the 21st day of September, 1944, a lot with improvements in the Town of Branchville was conveyed to I.F. Newsome by the Colonial Oil Company for the stated consideration of $2,500.00; that on or about the 13th day of October, 1943, a lot with improvements in the Town of Branchville was conveyed to I.F. Newsome by Bartley Hughes for the stated consideration of $3,000.00; that the said trucks, buses and automobile have been in the past and now are operated in business pursuits by and for the benefit of the defendant I.E. Newsome.
3. That for many years past the defendant I.E. Newsome has consistently failed and refused to allow the title or ownership of any property whatever, real or personal, to be placed of record in his name for the purpose of avoiding payment of his personal debts that he did not choose to pay of which the claim herein sued on is one; and that he has used the name of the defendant Inez F. Newsome, sometimes described as I.F. Newsome, and of his son, I. E. Newsome, Junior, to take title to the properties described in paragraph 2 above and other properties.
4. That on information and belief the defendant, I.E. Newsome, has held himself out, in the community in which he lives, as being the true owner of the property described herein; that all of the aforesaid property, or the greater part of it, is the sole property of and is owned by the defendant, I.E. Newsome; that it was bought and paid for with his money; and that should the defendant Inez F. Newsome or I.F. Newsome, the wife of the defendant I. E. Newsome, claim any interest in the properties described above, said interest, if any, is at least a partnership or community interest.
5. On information and belief, that for many years past the defendant, I.E. Newsome has operated at Branchville a grocery store, a restaurant, a liquor store and at present is operating a bus transportation businesses; that while all the said businesses have in the past and still are operated by the defendant I.E. Newsome in his name and as his property he has constantly kept the titles to all his property of record in the name of Inez F. or I.F. Newsome, his wife, to avoid payment of just debts and obligations incurred in buying merchandise for the said businesses; and that the defendant I.F. Newsome, his wife, knew or must have known of her husband's such acts or practices and collaborated with him therein; and that should this Court find that the said properties held in her name are in fact her properties then because of her said husband's acts and doings as aforesaid with her knowledge and collaboration she should be held responsible and liable as a partner in her husband's business operations and be held equally accountable for the obligations incurred therein both as a partner and as a beneficiary of the fruits thereof.
Wherefore, plaintiff prays judgment against the defendants in the sum of $345.71; that the property described herein be found by the Court and held to be the property of the defendant I.E. Newsome or of himself and his wife Inez F. Newsome as copartnership and subject to execution against I.E. Newsome or both of them; that the plaintiff have judgment against them for the costs of this action; and for such other and further relief as to the Court shall appear just and meet.
ANSWER OF INEZ F. NEWSOMESecond, for a Second Defense and by Way of Counterclaim:
1. Alleges that on or about October 25, 1944, the plaintiff herein, acting through its duly authorized agent and vice-president, E.M. Cudworth, made an affidavit and published the same that she, as the wife of I.E. Newsome, and in order to avoid payment of just debts and obligations incurred in buying merchandise, fraudulently has held in her name properties belonging to the said I.E. Newsome, which said statement and affidavit was untrue and false, and was known by the plaintiff herein to be untrue and false, and was made for the purpose and with the intention of damaging the good reputation and name of the defendant herein and to hold her up to public censure and for the purpose of making her pay obligations which she never contracted, nor had anything to do with contracting, with the plaintiff herein, if any.
2. The business of this defendant as a retail merchant has always depended largely on her good reputation and credit and on the personal trust imposed in her by her creditors and the public in consequence thereof, and that the said statements on behalf of the plaintiff herein were made in connection with the said transaction involved in this suit and were published among the business associates of this defendant with the willful, wanton and malicious intent to hold up and damage the reputation and ability of this defendant to earn a living at her usual vocation, and the said statements were false at the time they were made, and such false statements were known by the plaintiff herein to be false, and as a direct and proximate result thereof this defendant has been subjected to great public scorn, humiliation, inconvenience, trouble and expense, and has suffered great injury, loss and damage to her business and reputation in the sum of $3,000.00.
3. Denies each and every allegation in said complaint not herein specifically admitted, controverted or denied.
Wherefore, This defendant demands that the complaint against her be dismissed, and that she have judgment against the plaintiff for the sum of $3,000.00, and for the costs of this action.
Messrs. Felder Rosen, Mr. W.B. Martin, and Mr. P.F. Haigler, all of Orangeburg, S.C. Counsel for Appellant, cite: As to "Libelous Allegations in Pleadings": 150 S.C. 325, 185 S.E., 623; 36 C.J., 1239. As to When An Action is Commenced: Code of S.C. 1942, Sec. 357.
Mr. R.A. Bowman, of Orangeburg, S.C. Counsel for Respondent, cites: As to Allegations in Complaint Being Privileged in Law: 180 S.C. 325, 185 S.E., 623; 125 Minn., 146, 145 N.W., 810. As to Counterclaim Arising After Commencement of Action: 171 S.C. 462, 172 S.E., 616; 30 S.C. 126, 8 S.E., 796.
April 2, 1945.
Let the complaint in this action (which was verified by an officer of plaintiff-respondent), and the second defense and counterclaim contained in the answer of the appellant, Inez F. Newsome, be reported herewith.
The answer of I.E. Newsome was a general denial; and the first defense of the answer of the appellant, Inez F. Newsome, after admitting that she is the wife of I.E. Newsome, alleges that she "has no knowledge, information or belief as to the allegations of the complaint herein, other than that she has a separate estate from him, which is her property, paid for through her efforts, and that she is the owner and holder of the same." Then follows a general denial of all allegations not admitted.
The respondent moved to strike paragraph 1 of the first defense of the answer of the appellant on three stated grounds. This motion was refused, and there is no appeal therefrom. However, the respondent also moved to strike paragraphs 1 and 2 of the second defense and counterclaim on the ground: "That the alleged acts of the plaintiff therein, even if defamatory as alleged, are absolutely privileged in law and cannot constitute a defense".
The County Judge granted this motion, citing as authority therefor the case of Texas Company v. C.W. Brewer Co. et al., 180 S.C. 325, 185 S.E., 623; and on the additional ground that the alleged counterclaim arose, if it did arise, after the commencement of the action.
It is from this order that Inez F. Newsome has appealed.
The case cited by the County Judge ( Texas Company v. C.W. Brewer Co. et al.) holds that libelous or defamatory statements in pleadings, when pertinent or material or relevant to real issues involved, are privileged; that the pertinency or materiality or relevancy of such statements is for the determination of the Court and not a jury, and that in determining this issue pleadings must be liberally interpreted and all doubts resolved in favor of relevancy.
Liberally interpreted, there are allegations in the complaint which are relevant to appellant's (Mrs. Newsome's) liability for the alleged indebtedness, and responsive to the efforts to make appellant liable for the indebtedness and property in her name subject to execution for any judgment procured thereon. Therefore, it was correctly held that the statements contained in the complaint were privileged and could not furnish a defense, or the basis for an action in libel.
We find it unnecessary to discuss the additional ground upon which the objectionable matter in the second defense and counterclaim of the appellant was stricken from her answer.
Judgment affirmed.
MESSRS. ASSOCIATE JUSTICES FISHBURNE, STUKES, TAYLOR and OXNER concur.