Costas v. Florence Printing Co.

• Decision Date: 06 March 1961
• Docket Number: No. 17751,17751
• Citation: 237 S.C. 655,118 S.E.2d 696
• Court: South Carolina Supreme Court
• Parties: Mike COSTAS, Respondent, v. FLORENCE PRINTING COMPANY, Inc., Appellant.

Page 696

118 S.E.2d 696

237 S.C. 655

Mike COSTAS, Respondent, v. FLORENCE PRINTING COMPANY, Inc., Appellant.

No. 17751.

Supreme Court of South Carolina.

March 6, 1961.

McEachin, Townsend & Zeigler, Florence, for appellant.

Yarborough & Parrott, Florence, for respondent.

MOSS, Justice.

Mike Costas, the respondent herein, brought this action against Florence Printing Company, Inc., the appellant herein, the publisher of the 'Florence Morning News', a daily newspaper, seeking the recovery of actual and punitive damages by reason of its publication on August 18, 1959, of an alleged libelous article concerning him.

The appellant made a motion to make more definite and certain parts of the said complaint and to strike other portions thereof. When the motion came on to be heard before the Honorable William T. McGowan, Jr., Judge of 'The Civil Court of Florence', the respondent agreed to amend his complaint, and such amended complaint was served on September 9, 1960. The appellant demurred to the amended complaint, and, reserving his rights under the demurrer, made a motion to require the respondent to make his complaint more definite and certain and to strike portions of such amended complaint. The Trial Judge heard the demurrer and the motion, it being stipulated that the appellant would reserve its rights to appeal should the Court dismiss the demurrer. The Court, by its order dated October 8, 1960, overruled the demurrer. Notice of intention to appeal from such order was duly served. Thereafter, the respondent served 'Amended Complaint Number Two'. The appellant demurred to this complaint. While the demurrer and appeal from the order of October 8, 1960 was pending, the respondent moved to amend further the complaint by alleging special damages. This motion was granted by the Trial Judge on December 1, 1960, and 'Amended Complaint Number Three' was served. Timely appeal from this last order was duly given.

The complaint alleges that the appellant is engaged in the printing and publishing of the 'Florence Morning News', a daily newspaper with wide circulation in eastern South Carolina. It is also alleged that the respondent is engaged in business as a merchant, being the owner and operator of the Airport Drive-In, located just east of the City of Florence, South Carolina, and that he was of good name, fame and credit. It is further alleged that on August 18, 1959, an article appeared in said newspaper entitled 'Youths Fined for Fighting', which said article gave a purported account of the proceedings in a Magistrate's Court on August 17, 1959, and there was maliciously published of and concerning the respondent and his business the following words, which were false and defamatory:

'This was the second fight within a week at the drive-in. On August 10, Jimmy Harper, 17, and Laverne Powell, 18, of Florence, were charged with disorderly conduct.

'Harper and Powell, along with two other Florence youths have been charged with the armed robbery of a gas station in Moncks Corner Friday night.'

The complaint also asserts that the respondent, over a period of years, has established a reputable business, one that is acceptable by parents for their children to visit; that he does not allow boisterous conduct or misconduct at his place, nor does he sell beer, tolerate profanity or permit any act or conduct which would be detrimental to the morals of the youth of the area. It is further alleged that on April 3, 1957, that the appellant published another false article in its newspaper concerning misconduct of patrons at respondent's place of business. The respondent asserts that after the publication of the previous article that he conferred with the editor of said newspaper and warned him not to again publish untrue articles relative to respondent's place of business, and, in spite of such warning, the above mentioned article was wilfully, intentionally and maliciously published, with the intention to damage the respondent and his business, and that the publication of the aforesaid article has damaged and injured the respondent.

The appellant demurred to the amended complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action in that the alleged libelous words are not actionable per se and the complaint contains no allegation of special damages, and no allegation of the way in which any special damages resulted from the publication. As is heretofore stated, the Trial Judge overruled the demurrer, stating:

'It is my opinion that the language is susceptible of a charge that plaintiff was operating a place of business where disorderly conduct occurred frequently among teenagers and other young people. The complaint charges that such imputation is false and that the publication was wilfully and maliciously made. Therefore, it is my opinion that the complaint does state a cause of action and that it will be for the jury to determine whether or not the words used are libelous per se.'

The Trial Judge struck from the complaint the allegations thereof that the appellant had previously published a false article in its newspaper concerning the misconduct of patrons at respondent's place of business, and that the respondent had advised the editor of the falsity thereof and warned against the publication of any future untrue articles. He held, however, which seems somewhat inconsistent, that the appellant was entitled to have the amended complaint made more definite and certain by stating wherein the previous article published on April 3, 1957 was false and untrue.

The first question for determination is whether the publication complained of is libelous per se. It is the position of the appellant that the publication is not libelous per se, and since there is no allegation of any special damage, the demurrer should have been sustained.

It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. However, a demurrer does not admit the inferences drawn by the plaintiff from such facts and it is for the Court to determine whether or not such inferences are justified; that is, to determine if the language used in the publication can fairly or reasonably be construed to have the meaning attributed to it by the plaintiff. Drakeford v. Dixie Home Stores, 23 S.C. 519, 105 S.E.2d 711.

In the case of Flowers v. Price, 192 S.C. 373, 6 S.E.2d 750, this Court held that a demurrer is the proper procedure to test the actionable character of the charge and it will only be sustained where the Court can affirmatively say that the publication is incapable of any reasonable construction which will render the words defamatory; and to the extent that the demurrer tests the actionable quality of the words it is an admission of the allegations of the complaint.

In the case of Jackson v. Record Publishing Co., 175 S.C. 211, 178 S.E. 833, 835, this Court said:

'When the language alleged to be libelous, or slanderous, is plain and unambiguous, and admits of but one reasonable construction, it becomes a matter of law for the action and determination of the court. If said language be ambiguous, or doubtful of meaning, it should be left to the jury to determine in what sense it was used, and what its meaning is.

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"The inference of hurt arising out of facts in order to become actionable must be such an inference as is established by the general consent of men, and the inference must be judged of by the Court in the first instance.' 17 R.C.L., 264; McGregor v. State Co., 114 S.C. 48, 53, 103 S.E. 84.'

In the case of Whitaker v. Sherbrook Distributing Co., 189 S.E. 243, 200 S.E. 848, 849, this Court said:

'In order to render words libelous per se, their injurious character must appear upon their face. The nature of the language used must be such that the Court can legally presume without proof that the plaintiff has been damaged as a natural, necessary, and proximate consequence from the use of the words employed in the publication. The words must be of such a character that a presumption of law will arise therefrom that the plaintiff has been degraded in the estimation of his friends or of the public, or has suffered some other loss either in his property, character, reputation or business or in his domestic or social relations. McClain v. Reliance Life Insurance Co., 150 S.C. 459, 148 S.E. 478; Duncan v. Record Pub. Co., 145 S.C. 196, 143 S.E. 31.

'Therefore, the real practical test, by which to determine whether special damage must be alleged and proven in order to make out a cause of action for libel, is whether the language is such as necessarily must, or naturally and presumably would, occasion the damages in question.'

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 proper averment. Hubbard v. Furman University, 76 S.C. 510, 57 S.E. 478. In the case of Spigener v. Provident Life & Accident Ins. Co., 148 S.C. 249, 146 S.E. 8, it was held that a demurrer to a complaint should be sustained where the words alleged were not libelous per se and there was no allegation of...