Hubbard v. Furman University

• Decision Date: 09 April 1907
• Citation: 57 S.E. 478,76 S.C. 510
• Parties: HUBBARD v. FURMAN UNIVERSITY.
• Court: South Carolina Supreme Court

57 S.E. 478

76 S.C. 510

HUBBARD v. FURMAN UNIVERSITY.

Supreme Court of South Carolina

April 9, 1907

Appeal from Common Pleas Circuit Court of Greenville County; Watts Judge.

Action by Louis M. Hubbard against the Furman University. From an order sustaining a demurrer, plaintiff appeals. Affirmed.

D Lewis Dorroh, for appellant. B. M. Shuman and Haynsworth & Patterson, for respondent.

WOODS J.

This action was brought to recover damages for certain publications of the defendant alleged to be defamatory of the plaintiff and injurious to his reputation and business as head of a music school. The circuit court sustained a demurrer to the complaint, on the ground that it failed to state facts sufficient to constitute a cause of action, in that the publications attributed to the defendant were not defamatory or libelous. The exceptions in varying terms assign error in this conclusion.

The definition of libel as adopted in Smith v. Bradstreet Company, 63 S.C. 525, 530, 41 S.E. 763, 764, is as follows: "A libel is malicious defamation, expressed either by writing or printing, or by signs, pictures effigies, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty or integrity or reputation, or publish the natural or alleged defects, of one who is alive, and thereby to expose him to public hatred contempt, ridicule, or obloquy, or to cause him to be shunned or avoided, or to injure him in his office, business, or occupation." For the purpose of relieving pleadings in libel cases from one of the rigid technical rules controlling them, the following provision was incorporated in the Code of Civil Procedure as section 185: "In an action for libel or slander, it shall not be necessary to state, in the complaint, any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken." Before this law was enacted, when the alleged libel did not mention the name of the plaintiff, it was necessary to state the extrinsic facts leading to the conclusion that the defamatory matter was applied to him. The change, however, does not obviate the necessity of setting out the facts which make language, not in itself defamatory, have that import. The rule as thus stated in 13 Ency. P. & P. 32, is universally recognized: "If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment." Power v. Miller, 2 McCord, 220; Ashbell v. Witt, 2 Nott & McC. 364. In Wilson v. Hamilton, 9 Rich. Law, 382, it is said: "When the defamatory paper shows clearly what is meant, and of whom it is written, it is unnecessary to allege new matter by way of inducement in the introductory part of the declaration; but where the paper is so ambiguous in its language that, form a perusal of it, the person alluded to cannot be ascertained, or where the libelous purpose is not manifest, a colloquium and averment are necessary to explain the meaning." Chief Justice Shaw thus states the principle in Carter v. Andrews, 16 Pick. (Mass.) 1, 6: "If the words have the slanderous meaning alleged, not by their own intrinsic force, but by reason of the existence of some extraneous fact, the plaintiff must undertake to prove that fact and the defendant must be at liberty to disprove it. The fact then must be averred in a traversable form, with a proper colloquium, to wit, an averment that the words in question are spoken of and concerning such usage, or report, or fact, whatever it is, which gives to words, otherwise indifferent, the particular defamatory meaning imputed to them. Then the word 'meaning' or 'innuendo' is used with great propriety and effect in connecting the matters thus introduced by averments and colloquia, with the particular words laid, showing their identity, and drawing what is now the legal inference from the whole declaration." The cases of Zimmerman v. McMakin, 22 S.C. 372, 53 Am. Rep. 720, and Smith v. Bradstreet Company, supra, give no intimation of any change in the law on this subject, for in both cases the matter set out was held to be defamatory on its face. Many authorities will be found in other jurisdictions to the effect that the Code of Procedure has made no change in this rule of pleading. 13 Ency. P. & P. 36. Indeed, the rule is so manifestly founded on common sense and justice that probably nothing but an explicit enactment would lead the courts to depart from it. In determining whether words are libelous, they are to be given their ordinary and popular meaning; and if they are susceptible of two meanings, one libelous and the other innocent, the former is not to be adopted and the latter rejected as a matter of course, but it must be left to the jury to determine in what sense they were used. Davis v. Johnston, 2 Bailey, 579; Marshall v. Gunter, 6 Rich. Law, 431. If the words are plainly libelous, or wanting in any defamatory signification, it is the province and duty of the court to say so. Where the meaning is doubtful, it is the province of the jury to decide. Note, 4 Am. Dec. 351; Barrows v. Bell, 66 Am. Dec. 479, 7 Gray (Mass.) 301; Hayes v. Press Company, 18 A. 331, 127 Pa. 331, 5 L. R. A. 643, 14 Am. St. Rep. 874; St. James Military Academy v. Gaiser, 28 S.W. 851, 125 Mo. 517, 28 L. R. A. 667, 46 Am. St. Rep. 502.

The sufficiency of the allegations of the complaint now under consideration is to be tested by these general rules. The plaintiff alleges that he was the efficient, successful director of music in the Greenville Female College from September 20, 1900, until he voluntarily resigned his position on June 6, 1906, and opened a music school of his own in the city of Greenville, called the ""South Carolina College of Music"; and he is now conducting this school, teaching himself and having the oversight of other teachers associated with him.

The first alleged libel is...