Holtzscheiter v. Thomson Newspapers, Inc., No. 24842.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: FINNEY, Chief Justice
• Citation: 332 S.C. 502,506 S.E.2d 497
• Docket Number: No. 24842.
• Parties: Sandra Prosser HOLTZSCHEITER, Respondent, v. THOMSON NEWSPAPERS, INC., d/b/a The Florence Morning News, Appellant.

332 S.C. 502
506 S.E.2d 497

Sandra Prosser HOLTZSCHEITER, Respondent,
v.
THOMSON NEWSPAPERS, INC., d/b/a The Florence Morning News, Appellant

No. 24842.

Supreme Court of South Carolina.

Heard January 5, 1995.

Decided September 22, 1998.

332 S.C. 507

E.N. Zeigler, of Zeigler and Graham, of Florence, for appellant

John S. DeBerry, of Florence, for respondent.

Jay Bender, of Baker, Barwick, Ravenel & Bender, of Columbia, for South Carolina Press Association, as amicus curiae.

FINNEY, Chief Justice:

This is a libel case in which respondent, a private individual, sued appellant, a newspaper, for publishing a statement on a matter of public interest which allegedly defamed respondent. The jury awarded respondent $500,000 actual damages and $1.5 million punitive damages. The trial judge remitted the punitive damage award to $500,000. The newspaper appeals. We reverse the trial judge's refusal to direct a verdict on punitive damages, and remand for a new trial absolute.

This is the second trial and appeal in this matter. See Holtzscheiter v. Thomson Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664 (1991) (Holtzscheiter I). We have granted the newspaper's petition to argue against the precedents of Holtzscheiter I and six other cases.¹ We took this unusual step

332 S.C. 508

because we are cognizant of the confusion generated by Holtzscheiter I's majority and dissenting opinions, and of the need to reconsider many of our defamation cases in light of changing constitutional principles. While we do not overrule these cases outright, we caution the bench and bar that this area of the law is constantly evolving, and consequently all prior decisions must be read in the context of the current state of the law

FACTS

Respondent's seventeen year old daughter (Shannon) was murdered. The morning after her body was found the newspaper ran a story which, among other things, quoted Shannon's doctor as saying "... there simply was no family support to encourage [Shannon] to continue her education." Respondent alleges this phrase defamed her.

The doctor testified she told the newspaper's reporter that Shannon lacked financial (not family) support to continue her education. There was circumstantial evidence that the paper did not follow its ordinary procedures in the filing and editing of this story in that the jury could have found no one other than the reporter read the entire story pre-publication. In addition, there was evidence that respondent had encouraged Shannon, a high school drop-out, to pursue her G.E.D. in the future.

COMMON LAW DEFAMATION

The tort of defamation allows a plaintiff to recover for injury to her reputation as the result of the defendant's communication to others of a false message about the plaintiff. Slander is a spoken defamation while libel is a written defamation or one accomplished by actions or conduct. See Wilhoit v. WCSC, Inc., 293 S.C. 34, 358 S.E.2d 397 (Ct.App.1987) (television broadcast of photo is libel). The statement at issue here is in the form of libel.

The defamatory meaning of a message or statement may be obvious on the face of the statement, in which case the

332 S.C. 509

statement is defamatory per se. An example of defamation per se is "A is a thief." If the defamatory meaning is not clear unless the hearer knows facts or circumstances not contained in the statement itself, then the statement is defamatory per quod. In cases involving defamation per quod, the plaintiff must introduce facts extrinsic to the statement itself in order to prove a defamatory meaning. An example of defamation per quod is "A had a baby" where the extrinsic fact is that A is unmarried. See Capps v. Watts, 271 S.C. 276, 246 S.E.2d 606 (1978)

Whether the majority in Holtzscheiter I held the phrase "There was simply no family support to encourage [Shannon] to continue her education" was defamatory per quod or defamatory per se is unclear. Citing Nettles v. MacMillan Petroleum Corp., 210 S.C. 200, 42 S.E.2d 57 (1947), the majority held that because the words used were ambiguous, respondent could introduce evidence of how the phrase was understood. The passage from Nettles that precedes this holding is a discussion of defamation per quod which addresses the admissibility of extrinsic facts and of evidence of how the words were understood. It would therefore appear Holtzscheiter I`s majority held this case involved defamation per quod. The holding, however, is obscured by footnote 5, which asserts the evidence is not "necessary to supply a defamatory meaning, but would merely explain whether readers, in fact, interpreted the article to convey a libelous meaning on its face." The Holtzscheiter I dissent understood the majority to hold that the statement was defamatory per se, not per quod, and criticized this holding. Commentators also appear confused about Holtzscheiter I`s holding on this issue. Compare Hubbard and Felix The South Carolina Law of Torts 157 (Supp. 1993) (interpreting Holtzscheiter I to hold the "statement ... could be read as defamatory without resort to extrinsic facts... i.e., defamatory per se") with 20 S.C.Juris. Libel and Slander § 3, p. 104, fn. 15 (1993) (interpreting Holtzscheiter I to hold the statement was defamatory per quod). We now clarify Holtzscheiter I: the statement is defamatory per quod. Hence, extrinsic evidence is necessary to prove the defamatory meaning.

Much confusion arises from defamation law's use of the term "per se" in two different senses. As noted above,

332 S.C. 510

there is the question whether the statement is defamatory per se or per quod. A separate issue is whether the statement is "actionable per se" or not.² This issue is one of pleading and proof, and is always a question of law for the court. If a defamation is actionable per se, then under common law principles the law presumes the defendant acted with common law malice³ and that the plaintiff suffered general damages. If a defamation is not actionable per se, then at common law the plaintiff must plead and prove common law actual malice and special damages.⁴ Capps v. Watts, supra; Lily v. Belk's Dep't Store, 178 S.C. 278, 182 S.E. 889 (1935).

Further, in assessing the question of actionable per se or not, an important distinction is drawn between defamation in the form of libel and that in the form of slander. Libel is actionable per se if it involves "written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous...." Lesesne v. Willingham, 83 F.Supp. 918, 921 (E.D.S.C.1949). In other words, if the trial judge can legally presume, because of the nature of the statement, that the plaintiff's reputation was hurt as a consequence of its publication, then the libel is actionable per

332 S.C. 511

se. Capps v. Watts, supra. Essentially, all libel is actionable per se. The statement at issue here is in the form of libel and, accordingly, Holtzscheiter I held it was actionable per se,⁵ that is, without pleading or proof of special damages.⁶

In contrast to libel, slander is actionable per se only if it charges the plaintiff with one of five types of acts or characteristics: (1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession. Lesesne, supra; Galloway v. Cox, 172 S.C. 101, 172 S.E. 761 (1934). While some states limit actionable per se libel to the same categories of slander which are actionable per se, this is not the law in South Carolina. See, e.g., Hubbard and Felix The South Carolina Law of Torts 402 (1990). To the extent Holtzscheiter I may be read to impose this limitation on actionable per se libel, it is overruled.

Under common law principles, it is presumed respondent suffered general damages and that the newspaper acted with common law actual malice because this case involves libel, which is actionable per se. Further, since the law of the case under Holtzscheiter I is that the phrase is defamatory per quod, the respondent is entitled to introduce extrinsic evidence to prove the phrase's defamatory meaning.

CONSTITUTIONAL ISSUES

This case involves a claim for general and punitive damages by a private plaintiff against a media defendant in a matter of public interest.⁷ Accordingly, the case has constitutional implications and issues. We note that constitutional issues were

332 S.C. 512

neither raised nor ruled on at the trial level in Holtzscheiter I because the newspaper prevailed at the directed verdict stage on common law issues alone. Despite the fact constitutional issues were not before the Court in the first appeal, the dissent engaged in a discussion of them. The unfortunate consequence of this discussion was confusion at the second trial whether the majority's silence on the constitutional issues was an implicit rejection of the dissent's view, and therefore whether certain constitutional issues were foreclosed at the second trial on law of the case grounds, having been implicitly litigated in Holtzscheiter I. As we view the record in this second trial, the parties and trial judge felt they were bound by the law of the case, and thus certain constitutional issues were not fully litigated. This erroneous, though understandable, confusion permeated the second trial. We therefore take this opportunity to discuss the constitutional questions implicated by this case.

At common law, defamation was a "strict liability" tort, but where the constitution is involved, the common law rules are altered. For example, since respondent relied on the newspaper's negligence here to establish liability, the constitution requires she prove "actual injury": She may not rely on the common law presumption of general damages⁸ arising from a defamation actionable per se. Gertz v. Robert Welch, Inc., 418...