Spigner v. Provident Life & Accident Ins. Co

• Citation: 146 S.E. 8
• Decision Date: 19 December 1928
• Docket Number: (No. 12,548.)
• Court: United States State Supreme Court of South Carolina
• Parties: SPIGNER. v. PROVIDENT LIFE & ACCIDENT INS. CO.

146 S.E. 8

SPIGNER.

v.PROVIDENT LIFE & ACCIDENT INS. CO.

(No. 12, 548.)

Supreme Court of South Carolina.

Dec. 19, 1928.

Carter, J., dissenting.

Appeal from Common Pleas Circuit Court of Richland County; M. S. Whaley, Judge.

Action by Maynard R. Spigner against the Provident Life & Accident Insurance Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

E. J. Best and J. B. McLaughlin, both of Columbia, for appellant.

Ashley C. Tobias, Jr., of Columbia, for respondent.

THURMOND, J. This action was instituted in the county court for Kichland county, and is for libel, and arose from the following facts:

The plaintiff was a general agent for the defendant, at Columbia, S. C, and as such wrote a policy of insurance for S. J. Zimmerman against accident. On delivery of the policy, the plaintiff collected the annual premium, but did not remit same to the defendant for about 70 days.

The policy in question was written on the 26th day of May, 1926, and delivered on the 3d day of June' following. On July 21st thereafter the defendant wrote the plaintiff that the premium should be remitted not later than July 30th, and in response to this letter the plaintiff, wrote the defendant that thepremium would be in its office not later than August 15th, and on August 14th plaintiff wrote the defendant inclosing his check for the premium; but on the 16th day of August S. J. Zimmerman, the insured, received through the mail notice of the cancellation of the policy for nonpayment of premium.

The defendant interposed a demurrer to the complaint on the following grounds, to wit: "(1) That the complaint does not state facts sufficient to constitute a cause of action in that the notice did not charge the Plaintiff with any wrong; (2) in that the publication complained of is not libelous per se and the inference drawn by the Plaintiff as to the innuendo is a conclusion neither reasonable nor justifiable; (3) in that the publication complained of is not libelous per se and that the inference drawn from such language is one arbitrarily selected by the Plaintiff from other natural inferences not libelous; (4) in that the publication is not libelous per se and there is no averment of special damages sustained by the Plaintiff, and (5) in that the publication complained of is not libelous per se and there is no averment of any peculiar extrinsic facts or circumstances which impress the language with a libelous meaning."

His honor, Judge Whaley, sustained the demurrer, and his order follows:

"This matter comes before me on Demurrer to the Complaint upon Five (5) separate grounds. There are Four (4) cases in which the parties are identical, each case alleging a cause of action for libel based upon a notice of cancellation of a policy of insurance sent to an assured whose policy was solicited and written by the Plaintiff as agent for the Defendant Company. The actions are in every respect identical, save for the difference in the names of the respective assured, and for the sake of brevity I am treating the Four (4) cases as one, and this Order, therefore, will apply to each of the Four (4) cases.

"After reading the complaint carefully and hearing arguments by counsel, I am convinced that the Notice referred to, and the words therein contained which are complained of, are not libelous per se, there are no allegations as to any especial damages and no extrinsic circumstances alleged which would render the words in the Notice libelous.

"Under the authorities in Prickett v. Western Union Telegraph Co., 134 S. C. 276, 132 8. E. page 587, and in Bell v. Clinton Oil Mill, 129 S. C. 242, 124 S. E. page 7, I am of the conclusion that the Complaint is demurrable.

"It is therefore ordered that the Demurrer of the Defendant be and the same is hereby sustained and the Complaints dismissed."

The plaintiff served eight exceptions to the order, which may be considered together, as they raise but one question, to wit: "Does the complaint state facts sufficient to constitute a cause of action?"

It will be observed that the plaintiff's name was not mentioned in the notice and no charges made against him, express or implied.

A demurrer is an admission of the facts alleged in a pleading, but a denial of the law arising on those facts. Blackstone. See, also, Caldwell et al. v. Carroll et al., 139 S. C. 171, 137 S. E. 444, Citizens' Bank v. Lynch, 124 S. C. 498, 117 S. E. 715.

In Oliveros v. Henderson, 116 S. C. 77, Syl. 2, 106 S. E. 855, held: "Demurrers to a complaint admit facts alleged therein, but do not admit inferences drawn by plaintiffs from such facts, and it is for the court to determine as to whether or not such inferences are justifiable."

A demurrer will not be sustained to a complaint even if it states a cause of action different from that to which the plaintiff supposes himself entitled. Welborn v. Dixon, 70 S. C. 112, 49 S. E. 232, 3 Ann. Cas. 407, and cases cited.

In Simon v. Sabb, 56 S. C. 38, 33 S. E. 799, it is held: Where a complaint states facts entitling plaintiff to some relief, it is not demurrable.

In Bank of Johnston v. Jones et al., 141 S. C. 98, 139 S. E. 190, held: "A complaint, though it alleges contradictory matters, is not demurrable if it states a cause of action."

In Ward & Co. v. Ford, 58 S. C. 560, 36 S. E. 916, held: "A cause of action is stated when the facts alleged show some right of plaintiff, and the invasion of that right by some delict or breach of duty by defendant."

In Chalmers v. Glenn, 18 S. C. 471, held: "It follows, therefore, that he must allege in his complaint all the facts showing his right, and also those showing its invasion by the defendant, and the facts thus alleged must in law upon their face, on the one side entitle him to the right which he claims, and on the other amount to an invasion by the defendant."

See, also, Oliver v. Columbia & N. L. R. Co., 55 S. C. 546, 33 S. E. 586; Heath v. Haile, 45 S. C. 649, 24 S. E. 300.

Under the principles laid down in these cases, does the complaint state facts sufficient to constitute a cause of action? Cases more directly applicable to this case follow:

In Mayrant v. Richardson, 1 Nott & McC. 351, 9 Am. Dec. 707, held: "No words are actionable unless they are false and malicious; but words may be both false and malicious, and not actionable. Thus to say of a young lady, that she is not handsome, might be both false and malicious, but it would not be actionable."

In McGregor v. State Co., 114 S. C. 53, 103 S. E. 85, held: "The inference of hurt arising out of a statement of facts in order to become actionable, must be such an inference as is established by the general consent of men, and the inference must be judged of by the court in the first instance. Odgeron Libel and Slander, p. 25; 17 R. C. L. 264."

In Oliveros v. Henderson, 116 S. C. 77, Syl. 4, 106 S. E. 855, held: "A 'libel per se' is one actionable on its face; a 'libel per quod' is one not actionable upon its face, but which becomes so by reason of peculiar situation or occasion upon which the words are spoken or written."

In Bell v. Clinton Oil Mill et al., 129 S. C. 242, Syl. 3, 124 S. E. 7, held: "The common-law rule was that, if alleged defamatory statement was not on its face applicable to plaintiff or was not actionable per se, complaint must show by what was termed the inducement extrinsic circumstances which, coupled with language used, affected construction and rendered it actionable."

In Prickett v. W. U. Tel. Co., 134 S. C. 276, 132 S. E. 587, held: The words, '"Party promised to pay and refused' * * * not libelous per se, and, in absence of allegation of special damage or extrinsic facts and circumstances which would render it libelous per se, complaint was insufficient to state a cause of action."

Applying the principles applicable to this case, announced in the foregoing cases, it is evident that the words objected to in the notice are not libelous per se, and there are no allegations in the complaint, of special damages, and no extrinsic circumstances alleged which make the words in the notice libelous; hence, no cause of action is stated by the plaintiff against the defendant in the complaint.

Therefore, it is ordered that the judgment of the lower court be affirmed.

COTHRAN and BLEASE, JJ., concur.

STABLER, J., did not participate.

CARTER, J. (dissenting). Being unable to concur in the conclusion reached in the leading opinion of the court in this case, I most respectfully dissent, and shall in a brief way-state my reasons therefor.

The action by the plaintiff, Maynard R. Spigner, was commenced in the county court of Richland county to recover damages against the defendant, Provident Life & Accident Insurance Company, for an alleged libel. The defendant demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The matter was heard by Hon. M. S. Whaley, County Judge, who after due consideration issued an order sustaining the demurrer and dismissing the complaint. From the...