Connelly v. State Co.

• Decision Date: 21 August 1929
• Docket Number: 12722.
• Citation: 149 S.E. 266,152 S.C. 1
• Parties: CONNELLY v. STATE CO. et al.
• Court: South Carolina Supreme Court

149 S.E. 266

152 S.C. 1

CONNELLY v. STATE CO. et al.

No. 12722.

Supreme Court of South Carolina

August 21, 1929

Appeal from Common Pleas Circuit Court of Allendale County; J. Henry Johnson, Judge.

Action by E. G. Connelly against the State Company and another. From an order denying a change of venue, the defendant named appeals. Affirmed.

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 chain gang 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 chain gangs 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 chain gang, in a satirical editorial in this newspaper, conferred upon some official of the Allendale County chain gang.

"'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 chain gang. The convict was of "a low order of intelligence" and the magistrate is said to have notified chain gang 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 chain gangs 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 on 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 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 State on 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 later 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

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