Oliveros v. Henderson

• Citation: 106 S.E. 855
• Decision Date: 16 April 1921
• Docket Number: (No. 10611.)
• Court: United States State Supreme Court of South Carolina
• Parties: OLIVEROS. v. HENDERSON (two cases). TERWILLIGER. v. HENDERSON.

106 S.E. 855

OLIVEROS.
v.
HENDERSON (two cases).
TERWILLIGER.
v.
HENDERSON.

(No. 10611.)

Supreme Court of South Carolina.

April 16, 1921.

[106 S.E. 856]

Appeal from Common Pleas Circuit Court of Aiken County; H. F. Rice, Judge.

Actions by L. M. C. Oliveros, by Louis D. Oliveros, and by William Terwilliger against C. K. Henderson for slander and libel. Judgment in each case for the defendant, and the plaintiffs appeal. Affirmed.

The following is the decree of the trial Judge:

The above-stated causes are actions for slander and libel, instituted by the plaintiff against the defendant Henderson.

In the cases of Terwilliger and Louis D. Oliveros two causes of action are set out. In the other four cases only one cause of action is set out in the complaint.

The matter came before me at the summer term of court for Aiken county, 1920, upon demurrer by the defendant to all the causes of action set out in the complaints, upon the ground that the same did not state facts sufficient to constitute causes of action.

In the month of February, 1920, Louis D. Oliveros and William Terwilliger were operating an ice cream parlor and cigar store in the city of Aiken, and were tried before magistrate W. B. Raborn upon a warrant, which complaint alleges was sworn out by C. K. Henderson, charging them with violation of sections 698 and 699 of the Criminal Code of South Carolina.

The case was tried by a jury, and resulted in the acquittal of the defendants. Thereafter, the complaint alleges, there was published in one of the newspapers of the city of Aiken what was purported to be an account of the trial and matters connected therewith. When the cases were called for hearing, it was suggested by counsel for the plaintiffs that the court was disqualified to hear the cases, upon the grounds that the now presiding judge was present at a meeting at the Baptist Church in which the matter of prosecuting the violators of the Sunday law was discussed, and

[106 S.E. 857]

that the court had participated in said discussion and meeting. The said grounds will be more fully disclosed by an affidavit filed along with the record in this case and made by W. M. Smoak, one of the attorneys.

The attorneys for the defendant insisted strenuously that there be no delay in the hearing of the causes, and that there was absolutely no grounds for the claim of the plaintiffs that the presiding judge should declare himself disqualified. As a matter of fact, on the occasion in question the now presiding judge was present at the Baptist Church in the city of Aiken, at one of the regular Sunday services, and, after the usual sermon and other exercises were over, but the congregation still sitting in their seats, and before being dismissed, the matter was brought up by either the minister or some member of the church—exactly who I cannot recall—and the matter was discussed while the presiding judge was sitting in the same seat in which he had listened to the sermon, and it was suggested by one of the deacons of the church that the now presiding judge should serve as a member of a committee to be appointed to look into the matter of the observance of Sunday law in the city of Aiken.

The now presiding judge plainly and unequivocally refused to have his name put upon any such committee, and stated, openly and plainly that on account of his official position he could have nothing to do with any such movement. He took no part whatsoever in the discussion, either for or against it, or in any other way.

Neither of the plaintiffs nor the defendant have ever been in any sense intimate with the present presiding judge, nor have any of them been connected with him in business or any other way; all of them are friends of the presiding judge, but none of them no more than any of the others. So far as he can recall, not one of them has ever been in his home, with the exception of Mr. L. M. C. Oliveros, who was there on one or two occasions on business; nor has he, the presiding judge, ever been, so far as he can recall, in the home of any one of the parties to said cause, and he has lived in the city of Aiken now for more than 16 years.

After a full consideration of the whole proposition he felt, and still feels, that there was absolutely nothing in the suggestion that he might be disqualified, and to refuse to hear these demurrers would be to shirk a plain duty which he was under oath to perform, unpleasant though it might be to undertake to decide differences among men all of whom he looks upon as his friends.

I have given this matter considerable study, and have endeavored to apply the law to the cases.

The demurrers admit the facts alleged in the complaint, but do not admit the inferences drawn by plaintiffs from such facts, and it is for the court to determine as to whether or not such inferences are justifiable; 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.

Libelous or slanderous matter, spoken or written, belongs to one of two classes—per se and per quod. In determining whether words are libelous or slanderous, they must be given their ordinary, popular meaning, unless, however, the defendant, at the time such words were used, modifies or explains the meaning which he gives them to mean something other than their ordinary, popular meaning.

A libel per se is one which is actionable on its face. A per quod libel, however, is one not actionable on its face, but becomes so by reason of the peculiar situation or occasion upon which the words are spoken or written.

As stated in 13th Ency. Pleading and Practice, and adopted in Hubbard v. Furman university, 76 S. C. 510, 57 S. E. 478:

"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 a proper averment."

We will first consider the cause of action of the plaintiffs J. Conrad Dobey, Joseph P. Logan, and Arthur M. Weeks. The publication complained of, and which the said plaintiffs claimed is libelous, is set out, in part at least, in the complaints in the said cause. Dobey, Logan, and Weeks were three of the jurors that tried the aforesaid cause in the magistrate's court. An examination of the publication will show that it can hardly be said that it is a criticism of the conduct of the said jurors. It is certain that nowhere in the said publication is there any direct criticism of these jurors, and certainly no direct charge that they were actuated in any degree by any improper motive in returning the verdict which they did. Therefore, if it can be construed a criticism of their work as jurors, it can be done so only by inference, but if it be construed as a criticism, then the question, which is a very far-reaching, important one, comes squarely up before the court as to whether or not the public has a right to criticize the verdict of a jury.

Jurors do not voluntarily assume their duties, but are required by the law to serve. This being so, there can hardly be two opinions about the proposition that in performing their duty they are entitled to full protection from unwarranted attacks upon their character, reputation, or motives by persons disgruntled or dissatisfied by any verdict which they might render; but are they, by virtue of their positions as jurors, to be held free from all criticisms, no matter how unjustifiable their verdicts may be? I find it impossible for an instant to entertain the affirmative of this proposition. If a circuit judge commits error or does a legal wrong, there is a higher court to set the matter right, but when a petit jury goes wrong by freeing a criminal against all the evidence and the law there is no remedy save by an indignant public opinion, such as may tend to prevent a repetition of such verdict.

I want it distinctly understood at this point that neither directly nor by insinuation do I mean to apply the word "criminal" to either of the young men who were tried in the magistrate's court, nor do I intend any language used above in reference to verdicts of jurors generally to be applied to the verdict rendered

[106 S.E. 858]

by the jury in the magistrate's case above referred to. Young Louis Oliveros I have known practically all of his life and I hold him in the highest regard. Terwilliger I have known for only a short time, but have never heard aught against his character. Fair and just criticism of a juror's work in the discharge of his duty is in the interest of the administration of justice and a sound public policy, and when such criticism is fair and just, then there is no defamation.

As is said in Bearce v. Bass, 88 Me. 521, 34 Atl. 411, 51 Am. St. Rep. 446, quoted in the dissenting opinion of Mr. Justice Watts in the case of Black v. State Company: "So long * * * as the criticism is confined to a man's work, and does not attack the moral character or professional integrity of the individual, and is fair and reasonable, there is no libel because there is no defamation of the man himself. But, when the comments or criticism of a man's work becomes an attack on his private or business character, then the element of malice comes in and stamps the language as libelous."

It may be true, as stated in Black v. State Co., supra, 93 S. C. at page 475, 77 S. E. at page 54 (Ann. Cas. 1914C, 989) that "the question when criticism and statements cease to be fair and honest, and become libelous is usually for the jury and can rarely be decided on demurrer, " but in the instant cases I do not think this can apply, and if this be the law with reference to criticism of the verdicts of jurors, then it is dangerous indeed to make any criticism whatsoever upon a juror's work, where the speaker or writer does not approve of it, because, no matter how honest or lacking in malice such criticism or comment may be, any...