Opinion
13969
January 9, 1935.
Before SHARKEY, J., Civil Court, Florence, June, 1934. Order affirmed.
Action by R.E. Hatchell against the Carolina Mutual Insurance Company. From an order overruling a demurrer to the complaint, the defendant appeals.
The order of Judge Sharkey directed to be incorporated and the amended complaint referred to in the order, omitting caption, formal allegations, and verification, were as follows:
AMENDED COMPLAINTThat for some time prior to March 29, 1934, the plaintiff was engaged in business as an insurance agent in the City of Dillon, S.C. and, as such insurance agent, represented the defendant in placing a certain policy of insurance No. 130473 upon the business property of G.H. Bell in Dillon, S.C. the premium upon which policy was duly paid by G. H. Bell to the plaintiff, and by the plaintiff duly remitted to the defendant.
That on or about March 29, 1934, more than a month and a half after the said premium had been transmitted to the defendant by the plaintiff, the defendant composed, published, circulated, and delivered to G.H. Bell a letter below set out concerning the plaintiff and containing certain false and defamatory matter, which defamatory matter was at the time of its publication and circulation known to the defendant to be utterly false, and which defamatory matter was published and circulated by the defendant with the deliberate and malicious intention to injure the plaintiff's business and to prevent his securing employment:
"THE CAROLINA MUTUAL INSURANCE COMPANY "Fire Insurance "37 Broad Street "Charleston, South Carolina "March 29, 1934"W — L
"Mr. G.H. Bell, 104 N. Railroad Ave., Dillon, S.C.
"Dear Sir: Under date of September 28 our policy of fire insurance No. 130473 was issued to you at the request of Mr. Ralph E. Hatchell in the amount of $1000.00 on store fixtures.
"Mr. Hatchell is not an agent of this Company but this business was written at his request but the policy was issued from Charleston.
"There is still an unpaid balance on premium due and we would like to have your advice as to what you have paid Mr. Hatchell on this account as otherwise we will be forced to consider cancellation of the policy due to the fact that Mr. Hatchell has not paid up the entire amount due under said policy.
"Very truly yours,"E.E. WEHMAN, JR., Secretary."
That by the contents of the said letter thus published and circulated, the defendant intended to and did charge the plaintiff with willfully and knowingly collecting the premium on the said policy and willfully and knowingly appropriating the same to his own use, without accounting to the defendant therefor, which accusations charged the plaintiff with an offense involving mortal turpitude on the part of the plaintiff and a crime under the laws of the State of South Carolina.
That the charges thus made in the letter above set out, written by the defendant concerning the plaintiff, were uttered, declared, published, and circulated by the defendant when known to be false, in a willful, wanton, and malicious manner, with the purpose and intention of injuring and damaging the plaintiff in his reputation, credit, and good name, and that, by reason of the wanton, willful, and malicious action of the defendant in publishing and circulating the said false and libelous statement and accusation concerning the plaintiff, the plaintiff has been held up to public scorn, contempt, and ridicule, his personal honor and reputation for trustworthiness wantonly and maliciously damaged, his credit and reputation injured and besmirched; and that, as a result of defendant's wanton, willful, and falsely malicious publication of the above libelous matter, the plaintiff has been humiliated, embarrassed, and professionally injured in the community in which he resides and is doing business, all to plaintiff's damage in the sum of $4,000.00.
ORDER OF JUDGE SHARKEYThis matter comes before me upon a demurrer to the amended complaint in an action for damages based upon alleged libelous statements contained in a letter written by the defendant concerning the plaintiff.
The defendant first demurred on the ground that no cause of action was alleged in the complaint in that the communication set forth therein was not libelous per se and that there were no extrinsic facts or circumstances set forth which would render the communication libelous by reason thereof.
After argument of counsel an order sustaining the demurrer was made with the following provision:
"That Plaintiff have twenty days from the date of this order within which to amend his complaint for the purpose of alleging such extrinsic facts as may be pertinent."
Plaintiff duly filed his amended complaint within the time required by the order and the defendant thereupon demurred to the amended complaint on the same grounds upon which it had demurred to the original complaint, that is, "that the communication set forth in said Amended Complaint is not libelous per se, and further that the Amended Complaint sets forth no extrinsic facts or circumstances which would render said communication libelous by reason thereof."
In my opinion the amended complaint sets forth such extrinsic facts and circumstances as would render the actionable nature of the libel a question for the jury. It is, therefore ordered that the demurrer to the amended complaint be, and it is hereby, dismissed.
It is further ordered that the defendant have twenty days from the date of this order within which to answer the amended complaint.
Messrs. Nathans Sinkler, for appellant, cite: As to libel: 172 S.C. 496; 174 S.E., 433; 116 S.C. 77; 106 S.E., 865; 114 S.C. 53; 103 S.E., 85; 146 S.E., 8; 172 S.C. 75; 172 S.E., 761; 148 S.C. 249.
Messrs. McEachin Townsend, H.M. Britt and Joe P. Lane, for respondent, cite: Actionable libel: 172 S.C. 101; 172 S.E., 761; 36 C.J., 1182; 148 S.C. 249; 146 S.E., 8; 116 S.C. 77; 106 S.E., 865; 114 S.C. 53; 103 S.E., 85; 134 S.C. 276; 132 S.E., 587. Libel as question for jury: 159 S.C. 191; 156 S.E., 357; 150 S.C. 459; 148 S.E., 478; 138 S.C. 47; 136 S.E., 21; 93 S.C. 467; 77 S.E., 51; Ann. Cas., 1914-C, 989; 168 S.C. 529; 170 S.C. 205; 170 S.E., 151; 134 S.C. 198; 132 S.E., 584; 155 S.C. 63; 10 Am. Dec., 633; 93 S.C. 457; 77 S.E., 51; Ann. Cas., 1914-C, 989; 96 S.C. 299; 80 S.E., 465; 145 S.C. 246; 143 S.E., 31; 2 Bail., 579.
January 9, 1935. The opinion of the Court was delivered by
This is an appeal from an order of Judge Sharkey overruling a demurrer to a complaint, which will be set out in the report of the case.
On the authority of the following cases, the order below is affirmed: Riley v. Askin Marine Co., 134 S.C. 198, 132 S.E., 584, 46 A.L.R., 558; Bosdell v. Dixie Stores Co., 168 S.C. 529, 167 S.E., 834; Williamson v. Askin Marine Co., 138 47 S.C. 47, 136 S.E., 21.
These and other cases sustain the Court below.
Affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON, CIRCUIT JUDGE, concur.