Lybrand v. State Co.

• Decision Date: 11 March 1936
• Docket Number: 14250.
• Parties: LYBRAND v. THE STATE CO.
• Court: South Carolina Supreme Court

184 S.E. 580

179 S.C. 208

LYBRAND v. THE STATE CO.

No. 14250.

Supreme Court of South Carolina

March 11, 1936

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

Action by George D. Lybrand against The State Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.

Affirmed.

L. H Andrews and E. J. Best, both of Columbia, for appellant.

Elliott McLain, Wardlaw & Elliott, of Columbia, for respondent.

FISHBURNE Justice.

This action was instituted to recover damages, general and special, on account of a certain publication made by the defendant, alleged to be libelous and defamatory of the plaintiff. 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 because it was privileged, being the publication of a judicial proceeding and there being no allegation that the publication was not a fair and true report of such proceedings. The case is before this court on exceptions to that ruling.

The alleged libel here relied on was published in The State on April 18, 1934, in the following form:

"Woman Attorney Seeks Damages

Mrs. S. Evelyn Lester Files Three Suits

Total of $30,000.00

Insurance Company Charged with Libel, Slander and Conspiracy

Mrs. S Evelyn Lester, local attorney, has brought three suits, one in the Court of Common Pleas for $25,000.00, and two in the County Court for $3,000.00 each, the suit for the larger amount being against the Commercial Casualty Company, A. H. Sawyer and George Lybrand, and the two suits for the smaller amount against the Commercial Casualty Company alone.

The suit for $25,000.00 against the Insurance Company, Sawyer and Lybrand alleges that the plaintiff had been employed by Irene Brown, Negress, on a claim against the Insurance Company and that she had entered suit against the Company and that when the issues were made up by the service of an answer by the attorney representing the company that she was then and there entitled to be present and consulted about the settlement if one was to be made.

The complaint of the plaintiff further alleges that Sawyer, whom the plaintiff alleges has a contract whereby he has a personal interest on all business that the company gets in South Carolina, and Lybrand traveled 40 miles into the country and got Irene Brown, 'ignorant and unlettered' to sign an affidavit settling for $50.00 in $1.00 bills.

The plaintiff asked for $1,500.00 in actual damages and $23,500 in the form of punitive damages.

In the suit for libel it is alleged that the defendant put into writing a libelous statement in the form of an affidavit prepared at its place of business for Irene Brown to sign and that A. W. Sawyer offered the affidavit in evidence in open Court December 18, 1933. The sum of $3,000.00 is asked for libel.

In the suit for slander it is alleged that Sawyer made slanderous remarks about the plaintiff to her client. The sum of $3,000.00 is asked for slander."

The appellant contends that the matters and things stated in the said article, headlines, and news story were false and untrue, malicious, defamatory, and libelous and unfounded, and in fact had no basis, that the same was not the publication of a judicial proceeding, and that, inasmuch as no judicial action had been taken thereon, it had no sanction of privilege whatever, and that the burden is upon the defendant to prove the truth of the alleged false and libelous statements contained in the article.

It appears on the face of the complaint that some time prior to April 18, 1934, one S. Evelyn Lester brought an action in the court of common pleas for Richland county, entitled S. Evelyn Lester, plaintiff, v. Commercial Casualty Insurance Company, A. H. Sawyer, and this plaintiff, George D. Lybrand, defendants, and that the said S. Evelyn Lester also instituted an action in the Richland county court, entitled S. Evelyn Lester, plaintiff, v. Commercial Casualty Insurance Company, defendant. It is alleged that the complaints in these two suits contain certain malicious libelous and untrue allegations of and concerning George D. Lybrand.

It is alleged in the case at bar that the defendant, its agents and servants, published and circulated of and concerning the plaintiff the article and news story hereinabove set forth, which article and news story contain excerpts from and portions of the complaints above referred to, and it is alleged that the article and news story and the statements therein contained of and concerning the plaintiff were libelous and malicious.

It appears that the precise question presented by this appeal has never heretofore been passed upon by this court. Undoubtedly the tendency of the early American cases is to limit the privilege of publishing judicial proceedings to matters which take place in public either at the trial or at some other hearing of the case in open court or, if not in open court, then at some place and before some officer or tribunal where the public have the right to be present.

The greater weight of authority elsewhere is to the effect that the publication of pleadings or other preliminary papers to which the attention of no judicial officer has been called and upon which no judicial action has been taken, even though filed, is not within the privilege accorded to the publication of judicial proceedings, in the absence of statutory modification of the rules of the common law. Until recent years this rule has apparently been uniformly held by an almost unbroken line of authority, as shown by the cases listed in the annotated note appearing in 52 A.L.R. 1438, following the report of Campbell v. New York Evening Post, 245 N.Y. 320, 157 N.E. 153, 155, 52 A.L.R. 1432.

Jurisdictions generally adhering to this rule rest their conclusions upon the reasoning that the public have no rights to any information on private suits until they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either nonlibelous character or truth to defend it. Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L.R.A. 599, 16 Am.St.Rep. 544; Barber v. St. Louis Dispatch Co., 3 Mo.App. 377. Another reason given is that suits might be brought containing scandalous accusations and after publication be discontinued without any attempt to try them, or on trial the cases may entirely fail of proof or probability. Among the leading cases holding to this view are the following: Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318; Park v. Detroit Free Press Co., supra; Houston Chronicle Publishing Co. v. McDavid (Tex.Civ.App.) 173 S.W. 467.

But the Massachusetts court in the recent case of Thompson v. Boston Pub. Co. (1934) 285 Mass. 344, 189 N.E. 210, 212, apparently shows a decided tendency to relax the rule. In that case, which was an action for libel, a rendition warrant was issued by the clerk under the seal of the court and bearing the teste of the judge of the court. It purported to be a proceeding before the court, and the plaintiff was not permitted to show the contrary. It was held that, the judicial nature of the proceeding being thus established, the publication was held to be privileged; it having been made in this purely formal and conventional manner the subject of judicial action. The court used this language:

"Although in the issuance of a warrant in such a case a clerk does not necessarily become a judicial officer, he does exercise judicial powers; and hence, when the clerk issues a warrant, the proceeding is one essentially judicial as that phrase is understood in the law of privilege. See Ormond v. Ball, 120 Ga. 916, 920, 48 S.E. 383. The decisions in Stanley v. Webb, 4 Sandf. (6 N.Y.Super.Ct.) 21, and Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548, 78 Am.Dec. 285, cited by the plaintiff, are not the law of this commonwealth. * * *

Even assuming it appeared that no judge was present when the warrant in this case was issued, the privilege would still apply. The facts show that the warrant was issued in a judicial proceeding, and the plaintiff admitted that he was arrested in connection with the Smith letter case. It follows that the publication of the proceedings was therefore privileged."

The practice was quite generally followed in this state by the lawyers of an earlier generation, when filing a summons and complaint, in the clerk's office, to require the clerk, not only to sign the summons, but also to affix thereto his official seal as clerk of the court of common pleas. This nicety in practice is followed even to-day by a great many of our practitioners, but there is no legal requirement or sanction for it under our Code of Procedure. If there were, then under the authority of Thompson v. Boston Pub. Co., supra, it would be logical to hold that the filing of a pleading in these circumstances would constitute such a public and official act in the course of a judicial proceeding as would make its publication privileged.

The decision in Campbell v. New York Evening Post, supra, is a radical and fundamental departure from what had theretofore been regarded as an established rule, and in our view it is based upon very sound and convincing reasoning. It recognizes that numerous cases in England and in the states hold that the rule of privilege does not apply to pleadings which, though filed, have not yet received judicial notice. It goes on to say:

"The English law plainly excludes from consideration pleadings filed, but not acted on in open court. With us the question is whether they may be brought under the head of judicial, public, or official

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