Opinion
12896
April 17, 1930.
Before JOHNSON, J., Spartanburg, September, 1929. Reversed and remanded.
Action by Reynold Smith against the Spartanburg Herald-Journal Company and others. From an order sustaining a demurrer to plaintiff's complaint and dismissing the action, plaintiff appeals.
The order sustaining the demurrer requested to be reported is as follows:
Complaint for libel demurred to for insufficiency upon the following grounds:
First — That said complaint does not state facts sufficient to constitute a cause of action in that the alleged libelous language is not imputed to the plaintiff herein, nor is there a single mention of plaintiff's name in the alleged libelous article which could possibly be identified by any reader of the paper in which it was published as being applicable to or as referring to the plaintiff herein.
Second — that the said language used in said article, as set forth in the complaint, is not actionable in that it at no place in said article names or mentions the plaintiff herein as being the party who committed the act related therein, and there is no allegation in the complaint that any of the defendants herein knew the plaintiff nor that they knew that he was the driver of said car.
Third — That said language is not libelous per se in that at no place in said article was the name of the plaintiff mentioned, nor were there any allegations of extrinsic facts which could possibly lead any reader, of said article to know who the driver of the car was, nor are there any allegations in said complaint which allege any special damage to the plaintiff arising from or growing out of the publication of the article complained of.
Fourth — That said publication was not actionable in that the name of the plaintiff was mentioned in no place in said article, and there is no allegation in the complaint alleging that the publication of said article had brought the plaintiff into public shame, disgrace, reproach and contempt among his friends and acquaintances, nor is there any allegation that any of the defendants had any knowledge as to whom the article referred.
Upon argument, counsel for plaintiff contended strenuously that the demurrer related solely to the necessity for the statement of extrinsic facts, showing the applicability of the article in question to the plaintiff, it being urged that no question is raised by such demurrer as to anything but the allegations necessary to constitute the colloquium, and that no point is raised as to the allegations necessary to constitute the inducement and the innuendo, even if such allegations were necessary in view of the language contained in the newspaper article complained of.
A careful consideration of the alleged libelous article convinces the Court that the demurrer should be sustained. The plaintiff is not named in such article, nor is there any description of him, or of the automobile in which he was riding; nor is there any reference to his place of residence, or anything else from which any reader of the alleged offensive article could understand and know that it related to the plaintiff. Neither is there any matter contained in such article or any facts alleged in the complaint contending to show that such article did refer to plaintiff, and was intended to refer to him. It is true that the complaint alleges that the article, as published, was intended to and did refer to the plaintiff, and that the charges and statements therein contained were understood by readers of such newspaper to refer to plaintiff and were understood by them to charge him with most vicious, cruel and brutal conduct, in violation of the criminal laws of the City of Spartanburg, and State of South Carolina, and that they were so intended by the defendants; but these are mere conclusions of the pleader, since there are no allegations of facts contained in the complaint sufficient to sustain such averments.
Our Court of last resort has held that language charging a "breach of trust" and shortages in cash accounts are not libelous per se, and I am convinced that the language contained in the news article complained of in this action are not libelous per se. For aught that appears in the complaint the baby may have been thrown from the car because such vehicle was on fire, or to avoid an impending collision, and it has been held repeatedly by our Court that if the alleged defamatory statement was not upon its face applicable to plaintiff or was not actionable per se, although the colloquium is no longer necessary by reason of our Statute, the inducement and innuendo are as essential as they were at common law.
It is therefore ordered that the demurrer be and the same hereby is sustained, and the complaint dismissed for insufficiency.
Messrs. Bomar Osborne, for appellant, cite: Colloquium unnecessary: 1 Civ. Code 1922, Sec. 425. On demurrer complaint taken as true: 134 S.C. 324; 141 S.C. 98; 148 S.C. 133. Pleading in libel actions: 4 McC. L., 491; 36 C.J., 1158; 48 L.R.A. (N.S.) 355; 129 S.C. 242; 148 S.C. 249; 20 F.2d 763; 138 S.C. 47.
Messrs. Perrin Tinsley, for respondent, cite: Demurrer does not admit legal conclusions: 139 S.C. 171; 124 S.C. 498; 116 S.C. 77. Actionable words: 1 N. McC., 351; Odger "Libel and Slander," 25; 114 S.C. 53; 116 S.C. 77; 129 S.C. 242; 134 S.C. 276; 2 Brev., 480.
April 17, 1930. The opinion of the Court was delivered by
This is an appeal from an order of his Honor, Judge Johnson, sustaining a demurrer to the plaintiff's complaint and dismissing the action which was based upon the publication of an article in the newspaper of the defendants, as libelous.
It appears that the demurrer is based entirely upon the absence of a colloquium, the application of the publication to the plaintiff, which under Section 425 of the Code of Civil Procedure is no longer required. See Bell v. Clinton Mill, 129 S.C. 242, 124 S.E., 7; Duncan v. Record Co., 145 S.C. 196; 143 S.E., 31; Pierce v. Inter-Ocean Co., 148 S.C. 8, 145 S.E., 541; Spigner v. Provident Co., 148 S.C. 249, 146 S.E., 8.
The order appealed from is reversed, and the case remanded.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.