McLeod v. American Pub. Co.

• Decision Date: 16 November 1923
• Docket Number: 11345.
• Citation: 120 S.E. 70,126 S.C. 363
• Parties: MCLEOD v. AMERICAN PUB. CO. ET AL. (TWO CASES).
• Court: South Carolina Supreme Court

120 S.E. 70

126 S.C. 363

MCLEOD v. AMERICAN PUB. CO. ET AL. (TWO CASES).

No. 11345.

Supreme Court of South Carolina

November 16, 1923

Appeal from Common Pleas Circuit Court of Charleston County; John S Wilson, Judge.

Action by B. Frank McLeod against the American Publishing Company and John P. Grace. From an order striking out certain parts of the answer, and requiring the answers to be made more definite and certain, and from an order refusing in part plaintiff's motion to strike out certain allegations of the answer, both parties appeal. Reversed in part, and affirmed in part.

Whaley Barnwell & Grimball and Thos. P. Stoney, all of Charleston for plaintiff.

Logan & Grace and John I. Cosgrove, all of Charleston, for defendants.

WATTS J.

This is an action for libel. This is an appeal from an order of Hon John S. Wilson, Circuit Judge, striking out certain parts of the answer of defendants, and requiring answers to be made more certain and definite in certain particulars, and also of plaintiff, McLeod, from same order, which in part refused the motion to strike out certain allegations of the answer.

By the decisions of this court and under the statute an exception is made in actions for libel and slander as to the pleadings to that of the pleadings in a generality of cases. Section 426, Code of Civil Procedure of 1922, provides:

"In the action mentioned in the last section [action for libel or slander] the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and, whether he prove the justification or not, he may give in evidence the mitigating circumstances."

"It is true, as a general rule, reputation, good or bad, may not be pleaded or proved as a defense in a civil action. Exceptions to this rule embrace actions for breach of promise, seduction, malicious prosecution, libel and slander, assault and battery." Smith v. Lafar, 67 S.C. 495, 46 S.E. 333.

In Smith v. Smith, 50 S.C. 67, 27 S.E. 551, this court said:

"The allegations which the defendant moved to strike out constituted a part of the history of the case, and were important in determining the relief to which the plaintiff was entitled. Upon the trial of the case the plaintiff will be restricted in his testimony to proof of the facts alleged in the complaint, and instead of the allegations, to which the defendant objects, aggrieving him, they may work to his advantage, as they inform him beforehand upon what issues the case will be tried."

The inception of the trouble in the instant case and the casus belli was an address made by plaintiff at a political meeting where candidates for Congress made speeches, and Mr. Logan, a partner of Grace, was a candidate. Grace was not a candidate. McLeod attacked both Logan and Grace, and on August 26th McLeod's attack appeared in the News and Courier as a paid advertisement, and the same paper gave an account of the meeting and the attack on Grace by McLeod. On the following day, Grace published in the Charleston American the article which is the basis of this suit. The article of McLeod appeared in the News and Courier on August 26, 1922, and Grace's article in the American on August 27, 1922. Sutherland on Damages (4th Ed.) vol. 4, p. 4594, says:

"Evidence of a previous publication by the plaintiff will not be received in mitigation on the ground of provocation, unless not only the connection between the publications be manifest, but also that the provocation is so recent as to induce a fair presumption that the injury complained of was inflicted during the continuance of feelings and passions excited by the provocation. A distinct and independent libel published by the defendant is not mitigation; but, as just stated, if the publication by

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