Lesesne v. Willingham

• Court: U.S. District Court — District of South Carolina
• Writing for the Court: Nelson, Mullins & Grier, of Columbia, S. C., for defendant
• Citation: Lesesne v. Willingham, 83 F.Supp. 918 (D. S.C. 1949)
• Decision Date: 25 April 1949
• Docket Number: Civ. A. No. 2047.
• Parties: LESESNE v. WILLINGHAM et al.

83 F. Supp. 918

LESESNE v. WILLINGHAM et al.

Civ. A. No. 2047.

United States District Court E. D. South Carolina, Columbia Division.

April 25, 1949.

COPYRIGHT MATERIAL OMITTED

McLeod & Singletary, of Columbia, S. C., for plaintiff.

Nelson, Mullins & Grier, of Columbia, S. C., for defendant.

WYCHE, District Judge.

The plaintiff sues the defendant Western Union Telegraph Company and H. G. Willingham for libel based upon the telegraph company's acceptance, transmission and delivery of two telegrams over its usual and customary channels of local transmission in the City of Columbia, South Carolina.

The telegram upon which plaintiff's first cause of action is grounded is as follows:

"LDA6 NL PD Columbia SoCar 26 1946

Oct 26 PM 10 45

Thomas P. Lesesne

2207 Murray St Columbia So Car

Although you are an administrative assistant of the South Carolina State Board of Health and a New Deal tick that does not give you license to run through the streets of Columbia and kill women Turn over in bed and regret your wrong doings. Although you have tried to kill the case with political pull we are determined to pull you out into the spot light —

H. G. Willingham."

Webster's New International Dictionary, Second Edition, Unabridged, defines the word "tick" as follows: "1. Any of numerous arachnids of the order Acarida but larger than the ordinary mites, which attach themselves to a man and many animals and birds, and suck their blood. Their young have six legs, the adults eight. Some species are vectors of specific diseases of man and other animals. Ixodidae is the typical family. 2. Any of certain degraded parasitic dipterous insects, as the bird ticks, sheep tick, and bat ticks. 3. An offensive person; a pest."

The telegram upon which plaintiff's second cause of action is founded is as follows:

"CM6 NL PD Columbia SoCar Oct 27

Dr James A Hayne —

You nor no other Democratic politician is going to be big enough to fix the death that occurred at Wheat and Wood Streets caused by your admistrative assistant Thomas Lesesne. I have reported this to the Civil Rights Section of the United States Dept of Justice. After receiving cover all tactics from Highway Patrol and Columbia Police Dept.

H G Willingham. 902A"

The amended complaint alleges as to the first cause of action, "that the Defendant, Western Union Telegraph Company did accept said telegram for transmission and did willfully transmit same over its usual and customary channels of local transmission, thereby publishing it to those (of) its employees who had occasion to handle same, well knowing that it was apparently not privileged and was libelous and defamatory upon its face, in that it charged and impugned this Plaintiff, among other things, with the commission of a serious crime, and in the course of such transmission of the said telegram to this Plaintiff, did deliver it as (at) his home where it was first opened and read by his wife, * * *. That the defamatory and libelous statements as contained in the above quoted telegram were willfully, wantonly, maliciously and unlawfully uttered, written and published by the Defendants of and concerning this Plaintiff," etc. (Emphasis added.)

The amended complaint alleges as to the second cause of action, "that the Defendant, Western Union Telegraph Company, did accept said telegram for transmission and did willfully transmit same, thereby publishing it to those persons participating in its transmission, well knowing that it was apparently not privileged and that it was libelous and defamatory upon its face in that it charged and impugned this Plaintiff, among other things, with the commission of a serious crime and in the course of its transmission did forward and deliver same to the addressee, Dr. James A. Hayne, by whom it was read and then referred to Dr. Ben F. Wyman as Director of the South Carolina Health Department. That the defamatory and libelous statements as contained in the above quoted telegram were willfully, wantonly, maliciously and unlawfully uttered, written and published by the Defendants of and concerning this Plaintiff and that in consequence thereof and as the proximate result therefrom, this Plaintiff has been caused to suffer" etc. (Emphasis added.)

The case is now before me upon defendant Western Union Telegraph Company's motion to dismiss as to it upon the ground that the complaint fails to state a claim against this defendant upon which relief can be granted.

Both telegrams were transmitted within the City of Columbia, South Carolina. I must, therefore, be governed by the law of South Carolina in disposing of the motion.

It seems to be well settled in this State that any words which falsely or maliciously charge the commission of a crime, or which distinctly assume or imply one has committed a crime, or which raise a strong suspicion in the minds of hearers or readers, that one has committed a crime, or which plainly and falsely charge the contraction of a contagious disease, adultery or a want of chastity, or unfitness in the way of a profession or trade, or any 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, are actionable per se. Duncan v. Record Publishing Company, 145 S.C. 196, 143 S.E. 31; Turner v. Montgomery Ward & Co., 165 S.C. 253, 163 S.E. 796; Lily v. Belk's Department Store, 178 S.C. 278, 182 S.E. 889; Galloway v. Cox, 172 S.C. 101, 172 S.E. 761, 762; Sandifer v. Electrolux Corporation, 4 Cir., 172 F.2d 548, 550. In the last cited case it was said by the Circuit Court of Appeals of the Fourth Circuit: "And as a logical matter it should be immaterial whether the commission of a crime is charged positively and directly by words of clear and unmistakeable meaning or only indirectly and by means of innuendo. So long as the words are understood by third persons to make the charge, the effect from the standpoint of damage done may be calculated to be the same. "It has, in fact, been noted several times by the South Carolina courts that a hidden charge made by insinuation and innuendo may inflict graver injury and injustice than a direct and specific accusation which, if false, may be more easily met and refuted."

But the defendant contends that the amended complaint shows on its face that the two telegrams were privileged, and therefore, as a matter of law, are not actionable, unless plaintiff can prove actual malice.

Under the South Carolina decisions it has been held that: Privileged communications are of two kinds, absolute, and qualified; when the communication is absolutely privileged no action will lie for its publication, no matter what the circumstances under which it is published may be; when qualified, however, a plaintiff may recover if he shows that the libel was actuated by malice; in determining whether or not a communication is qualifiedly privileged, regard must be had to the occasion and to the relationship of the parties; when one has an interest in the subject matter of a communication, and the person or persons to whom it is made has a corresponding interest, every communication honestly made in order to protect such common interest is privileged by reason of the occasion; the statement, however, must be such as the occasion warrants and must be made in good faith to protect the interest of the one who makes it and the persons to whom it is addressed; a communication to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable and proper cause; the protection of privilege extends generally to communications made in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing the criminal to punishment; ordinarily, proof of a defamatory publication, charging another with the commission of a crime, malice is presumed, but in a qualified privileged communication the burden is cast upon the plaintiff to show malice in fact; actual malice, resting, as it must, upon the libelous matter itself, and the surrounding circumstances, to prove fact and motive, is a question to be determined by the jury; the courts of other jurisdictions differ as to the extent of the trial court's power and duty to determine whether such prima facie showing of privilege has been made in a given case as will require the proof of express malice, but under the settled law of this State there is no room for doubt as to the respective provinces of court and jury; the privileged "occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof," the presumption thus raised is a presumption or inference of fact sanctioned by law, to be applied by the jury under appropriate instructions of the court; if actual malice is shown the protection of privilege is destroyed; a communication which goes beyond the occasion exceeds the privilege; the protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists; the privilege does not protect any unnecessary defamation; in order for a communication to be privileged, the party making it must be careful to go no farther than his interests or his duties require; if a defense of qualified privilege is not sustained, malice may be presumed from publication of words...