Riley v. Ask In & Marine Co

• Decision Date: 05 April 1926
• Docket Number: (No. 11946.)
• Citation: 132 S.E. 584
• Court: South Carolina Supreme Court
• Parties: RILEY. v. ASK IN & MARINE CO.

132 S.E. 584

RILEY.

v.ASK IN & MARINE CO.

(No. 11946.)

Supreme Court of South Carolina.

April 5, 1926.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Libel.]

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Gladys Riley, by Georgia Riley, her guardian ad litem, against Askin & Marine Company. Prom an order overruling a demurrer to the complaint, defendant appeals. Reversed.

Following is the order of Judge Whaley directed to be reported:

The following order was passed by the county judge, upon hearing the demurrer:

This is a demurrer to a complaint upon three grounds; the first ground, however, having been withdrawn at the hearing.

As to the second ground, a careful reading of the letter as set out in the complaint shows clearly that it carries a hidden meaning or innuendo. Two reasonable inferences can be drawn from this letter, depending largely upon the circumstances surrounding the respective parties and growing out of their relationship to the subject-matter. In that view of the case a court should not pass upon the letter as a matter of law by way of demurrer, but should leave the matter open until all of the facts are presented, in the light of which the hidden meaning or innuendo can be solved either one way or the other; in other words, it may develop at the trial that the court would have to decide the issue as a matter of law either one way or the other, or that it might have to be left to the jury. It is plain that the demurrer should be overruled, as to that ground.

As to the third ground, there is an issue raised requiring very careful consideration. This case is somewhat different in its facts from that of Hedgepeth v. Coleman. 111 S. E. 517, 183 N. C. 309, 24 A. L. R. 232; but the principle remains the same. The complaint is defective, in that it is not alleged that the defendant knew of the minority of the plaintiff, but the plaintiff asked to amend to that extent, and that mo tion the court grants and will consider the matter as if that amendment had already been made.

If the plaintiff was a minor, and if the defendant knew that, then it would largely depend on the surrounding circumstances, as for instance, the age of the minor, whether or not the minor stays at the home of the parent, the actual daily relationship between such minor and parent, and possibly other circumstances that come into a case as to whether or not there would be publication, which, of course, brings into play the principle of proximate cause. I am not prepared to say as a matter of law in this case, where a minor was a girl about 17 or 18 years of age, living with her parents, to whom she had given her authority to open her mail, and who in the eyes of the law had the right to open her mail—I am not prepared to say as a matter of law that there was no publication when considering a demurrer; rather should it be left to the solution of all the facts when they are presented under the allegations as they now stand. At that time it might resolve itself either into a question of law or one of fact.

It is therefore ordered that the demurrer be, and the same is hereby, sustained, with leave to the plaintiff to amend the complaint as requested within five days from the date of service of this order.

E. A. Blackwell, of Columbia, for appellant.

E. J. Best, of Columbia, for respondent.

STABLER, J. This is an action for libel brought in the Richland county court. The appeal is from an order of the county judge overruling a demurrer to the complaint.

The complaint, omitting the formal parts, is as follows:

"(1) That at the time hereinafter mentioned the defendant was a corporation chartered and organized under the laws of a state other than South Carolina, and was and is a citizen of a state other than South Carolina; that at the time hereinafter mentioned the plaintiff was a resident and citizen of Columbia, Richland county, S. C.

"(2) That at the time hereinafter mentioned the defendant was engaged in the general mercantile business throughout the United States, and operated a system or chain of stores for the general sale and distribution of merchandise in various cities and towns of the United States, and did operate and conduct one of its said stores in Columbia, S. C.; that the said system and chain of stores sold merchandise upon installments at a much higher price than similar goods sold for cash by other competitors.

"(3) That at the time hereinafter mentioned the plaintiff was a minor under the age of 21 years and resided with her parents, who had access to her mail and_the privilege with her consent, to open any mail which came addressed to her, and in pursuance of such consent and authority her parents did read all of her mail, including that which the plaintiff received from the defendant, Askin & Marine Company, and also the letter herein set forth.

"(4) That some time in 1924 the plaintiff purchased from the defendant, Askin & Marine Company, a dress on the installment plan.

"(5) That on or about December 30, 1924, the defendant, Askin & Marine Company, and its agents, issued, circulated, and published of and concerning the plaintiff the following false, malicious, defamatory and libelous language, to wit:

" 'Columbia, S. C., Dec. 30, 1924.

" 'Miss Gladys Riley, % Saxon-Cullum Shoe Co.—Dear Friend: We took your word for your honesty when we permitted you to open a charge account with us. You agreed to make your payments promptly and we believed you meant exactly what you said when you signed the contract. You are not making your payments, nor have you answered our letters. We positively cannot permit you to ignore us in this way. We are now convinced that it is not due to carelessness. Whether it is or not, this letter must be answered at once with a payment. If it is not. we shall be forced to take the only course you leave open to us—legal methods.

" 'Very truly yours, Askin & Marine Co.'

"(6) That the circulation and publication of the above-described language concerning the plaintiff charged and meant to charge (and it was so understood by those reading same) the plaintiff with dishonesty in her dealings and transactions with the defendant, and that the said charges and language used concerning [plaintiff's honesty and integrity was false, malicious, defamatory, and libelous, and held the plaintiff up to scorn, contempt, ridicule, hatred, and derision, and reflected upon and injured the good name, reputation, and character of the plaintiff, to her damage $3,000."

The defendant demurred to the complaint on the ground;

"That it appears upon the face of said complaint that same does not state facts sufficient to constitute a, cause of action, in that: (1) There is no allegation in the complaint that a guardian ad litem has been appointed for the plaintiff for...