Prickett v. Western Union Telegraph Co.

• Decision Date: 08 April 1926
• Docket Number: 11956.
• Citation: 132 S.E. 587,134 S.C. 276
• Parties: PRICKETT v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

132 S.E. 587

134 S.C. 276

PRICKETT v. WESTERN UNION TELEGRAPH CO.

No. 11956.

Supreme Court of South Carolina

April 8, 1926

Appeal from Common Pleas Circuit Court of Calhoun County; E. C Dennis, Judge.

Action by C. L. Prickett against the Western Union Telegraph Company. From an order overruling a demurrer to the complaint, defendant appeals. Reversed, and complaint ordered dismissed.

Francis R. Stark, of New York City, and Nelson & Mullins, of Columbia, for appellant.

W. R Symmes, of St. Matthews, and W. C. Wolfe, of Orangeburg, for respondent.

COTHRAN J.

Appeal from an order overruling a demurrer to the complaint interposed by the defendant, in an action in which the plaintiff seeks to recover damages for the alleged publication of a libelous telegram.

The telegram upon which the action is based was sent by the agent of the company at St. Matthews, under the following circumstances, as detailed substantially in the complaint:

The plaintiff lives at St. Matthews, and about October 1, 1924, while hunting near Charleston, lost a dog. He requested Sheriff Limehouse of Dorchester county to assist him in finding the dog. On October 3d, Limehouse telegraphed, "collect," to the plaintiff at St. Matthews that the dog had been found, and was being shipped to him by express. The telegram was received by the wife of the plaintiff, who advised the delivery agent that the plaintiff would call at his office within a short time and pay for the "collect" message. That within a reasonable time thereafter the plaintiff's wife called at the St. Matthews office for the purpose of paying for the message, and was advised by the agent there that there was no message there for the plaintiff and no charge or account for said message against him. That thereafter, on October 8th, the agent at St. Matthews wired the agent at Summerville: "Yours of 3d C R Prickett, signed O. B. Limehouse Party promised to pay and refused." This telegram was delivered to Sheriff Limehouse, in an effort evidently to collect the tolls at that end of the line. This telegram, written, uttered, published, and delivered to Limehouse, is the basis of the action for libel.

The action was commenced on October 28, 1924. On November 19th the attorneys for the defendant served a written demurrer to the complaint as follows:

" Now comes the defendant, Western Union Telegraph Company, by Nelson & Mullins, its attorneys, and demurs to the complaint of the plaintiff herein on the ground that it appears upon the face thereof that the said complaint does not state facts sufficient to constitute a cause of action, in that:

(1) It appears from the allegations of the complaint that the publication attributed to the defendant is neither defamatory nor libelous, and is, therefore, not actionable.

(2) Because the publication or language attributed to the defendant is not libelous per se, and there is no allegation of any special damage sustained by the plaintiff.

(3) Because the alleged defamatory words are not actionable per se and there are no allegations of any extrinsic facts and circumstances from

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