Williamson v. Ask In & Marine Co

• Decision Date: 08 December 1926
• Docket Number: (No. 12118.)
• Citation: 136 S.E. 21
• Court: South Carolina Supreme Court
• Parties: WILLIAMSON. v. ASK IN & MARINE CO. et al.

136 S.E. 21

WILLIAMSON.

v.ASK IN & MARINE CO. et al.

(No. 12118.)

Supreme Court of South Carolina.

Dec. 8, 1926.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Richland County; W. H. Townsend, Judge.

Action by Mrs. Delia Williamson against the Askin & Marine Company and another.

Judgment for defendants on demurrer to the complaint, and plaintiff appeals. Reversed and remanded for trial.

Nelson & Mullins, Cooper & Winter, and J. B. McLaughlin, all of Columbia, for appellant.

E. A. Blackwell and R. Beverly Herbert, both of Columbia, for respondents.

STABLER, J. This is an action for damages based on alleged libel.

The complaint sets forth that on or about December 15, 1922, the plaintiff purchased, on credit, certain merchandise from the defendant Askin & Marine Company, of which the defendant J. M. Broome is manager, and that she completed payment of her account on or about July 7, 1923, but that the defendants still claim that there is a balance of $2 due on her account; and that, in attempting to collect the said alleged balance, the defendants wrote and published certain writings which, taken together and separately, contained matter that was libelous to her, copies of said writings, 23 in number, being attached to the complaint and marked as exhibits.

The defendants demurred to the complaint upon the following grounds:

"That the complaint does not state facts sufficient to constitute a cause of action against this defendant, for the reason that the only cause of action alleged in the complaint is based on alleged libelous matter contained in certain letters attached to the complaint, which letters appear on their face to be harmless and nonlibelous."

The demurrer was heard by Hon. W. H. Townsend, who, on September 4, 1925, passed the following order sustaining the demurrer and dismissing the suit:

"On hearing the demurrer to the complaint in the above-entitled action, I am of the opinion that the letters attached to the complaint, on which the action for libel is based, are not libelous. It appears that the defendant contended that the plaintiff owed a debt of $2, which fact is clearly indicated by the letters, and the letters are an effort on the part of the defendant to collect this debt. There is no allegation that the plaintiff was a trader or merchant and none of special damage, and, under the terms of these letters, I do not think they support the charge of libel. For these reasons, the demurrer to the complaint is sustained."

The plaintiff appeals from this order upon the following exceptions:

"(1) Because the complaint stated a good cause of action for libel, and it was error for his honor to hold that the written communications upon which the action is based were not libelous or actionable.

"(2) Because the written communications published under the circumstances set forth in the complaint and admitted by the demurrer were intended to and did carry a libelous meaning and charge, and were therefore actionable.

"(3) Because the written communications set forth in the complaint and published of and concerning the plaintiff were reasonably susceptible of conveying a libelous meaning or charge, and it was the province of the jury to say in what sense they were used or understood, and it was error for his honor to hold, as a matter of law, that the letters were not libelous and actionable."

Exhibit 23 is as follows:

"Notice of Intention to Commence Action.

"Commercial Liquidating Company against Del-la Williams. City of New York, County of New York, State of New York.

"We, Commercial Liquidating Company, as claimant and party of the first part, do hereby give you, Delia Williams, as debtor and party of the second part, the required ten days' notice of legal action in order that you may appear before the proper authority and show good and sufficient cause why legal action should not be brought against you by the aforesaid Commercial Liquidating Company, claimant and party of the first part, against you, the aforesaid Delia Williams, as debtor and party of the second part, Delia Williams, for the purpose of securing judgment for the sum of $2.00, account of Askin & Marine Company, creditor, of the city of Columbia, county of Richland, state of South Carolina. Said judgment to be collected and enforced with powers, privileges, and penalties given by law at the full discretion of the aforesaid Commercial Liquidating Company, as claimant, against Delia Williams, debtor. Signed by J. R. McCormick, Attorney in Fact, Acting for and in Behalf of Commercial Liquidating Company.

"Done at the city of New York, county of New York, state of New York, this 12th day of April, A. D. 1924. [Red Seal.]

"Know all men by these presents:

"Resolved and be it enacted, that Commercial Liquidating Company, shall not commence, or cause to be commenced, any court action, with the intention of making public display of the judgment thus obtained, and in all cases shall give the party, or parties against whom judgment is proposed to be taken, a notice in writing of not less than (10) days from the commencement of such action, and it is further required that a copy of this special resolution shall be displayed with the service of such notice.

"The laws of this state provide that all persons found guilty of obtaining goods under false pretenses shall be punished by fine or imprisonment, as the case shall be."

The exhibits attached to the complaint and containing the alleged libelous matter consist of communications addressed to the plaintiff, urging the payment of the balance claimed to be due on her account. The language used is not always of a mild and gentle nature, but were it not for Exhibit 23, set out above, we would have no hesitancy in affirming the judgment of the circuit court. Without reference to the present case, this court notes with regret the lamentable lapse of business conscience into which so many of our people have fallen within the past few years. Theprovocation put upon creditors by delinquent debtors who ignore just claims is very great. But, even so, this provocation does not remove the protection which the law throws around the good name of every citizen until it is shown to be unmerited.

In the present case the circuit judge appears to have had in mind, in passing his order dismissing the suit, that the words used were actionable only, if at all, upon the well-established principle that "words, not actionable in the case of a common person, may become so, when spoken of another, in relation to the office he fills or the trade or profession which he carries on" (Davis v. Davis, 1 Nott & McC. 200) or upon allegation of special damage. But we do not think the case rests upon these principles.

Language alleged to be defamatory "must be construed as a whole; that is, the words must be construed in connection with other parts of the conversation or published matter, written or printed." Exhibit 23 is, as stated, one of a series of communications, alleged to have been published in the same manner, of and concerning the plaintiff and so must be construed with the other communications. But even if it be considered alone we cannot say, as a matter of law, that, taken as a whole and its parts being construed together, its language is not actionable.

Exhibit 23, after setting forth what purports to be a "Notice of intention to Commence Action" against the plaintiff, contains this sentence:

"The laws of this state provide that all persons guilty of obtaining goods under false pretenses shall be punished by fine or imprisonment, as the case shall be."

To charge one with having committed the crime of obtaining goods or money under false pretenses is actionable per se. 18 A. & E. Ency. of Law (2d Ed.) 882; 36 C. J. 1202.

If, therefore, the quoted words had unquestionably referred to the plaintiff, they would have been actionable per se. However, they are not used directly of the plaintiff, but the language is in the form of a general statement in the third person, and this peculiar form of the language constitutes what is, in our opinion, the only difficulty in the case.

It is a well-settled principle that it is not necessary that the words, in terms, should charge the crime.

"If, taking them all together, in their popular meaning, such is the necessary inference, then there is no doubt that they are actionable." Morgan v. Livingston, 2 Rich. 573.

In 18 A. & E. Ency. of Law (2d Ed.) at page 989, it is said:

"It is well settled that if the words used to express the charge are such, in the sense in which they would naturally be understood, as I to convey to the minds of those to whom they are addressed, or to the readers of the words the impression that the plaintiff has committed a crime, the words are actionable. It is only necessary that the words should, of themselves, or by reference to extraneous circumstances, be capable of the offensive meaning attributed to them."

In 36 C. J. at page 1153, we find:

"The effect and tendency of the language used, not its form, are the criterion by which to determine the actionable quality of the words. It is not necessary, to render words defamatory and actionable, that they shall make a defamatory charge in direct terms. It may be made indirectly, by inference, by allegorical or figurative allusion, by expression of belief or opinion, by insinuation, by mere questions, by sarcasm or irony, by words of comparison, by words of praise and congratulation, as well as by direct assertion in positive terms, and it is not less actionable because made indirectly; and it matters not how artful or disguised the modes in which the meaning is concealed, if it is...