The above-stated case and three others by William M. Sims, George D. Kleckley, and Wade L. Murray were instituted against the defendant for damages on account of an alleged libel in the publication of an article in the Charleston Evening Post to the effect that the plaintiffs had been arrested and fined under the charge of carrying concealed weapons. The four cases arose out of the same publication; the allegations of the complaints and answers are identical; they were heard together in this Court; and the conclusion in the case above stated will apply to the other three.
The appeal is from an order of his Honor, Judge Bonham, sustaining a demurrer to the seventh and eighth paragraphs of the answer, considered as separate defenses. Let the complaint and the answer be incorporated in the report of the case.
We do not consider the paragraphs objected to as constituting separate defenses, but as explanatory of the circumstances under which the publication was made. Under the well-established rule that a demurrer must go to the entire answer or to a separate defense of the answer, the order might well be reversed upon this ground, but, waiving this point, we will consider the paragraphs as to their relevancy in sustaining the general defense of the defendant.
The seventh paragraph alleges that no complaint was ever made of the publication, and that the defendant was never informed that its information was erroneous; that it would have been willing and glad to have published any correction of the report, if erroneous.
In view of the contention of the defendant that the publication *Page 30 was based upon information received at the legitimate source of such information — the Sheriff's office, of the charges of willfulness and wantonness of the defendant in connection with the publication, of the well-established rule that all of the circumstances connected with the publication which shed light upon the motive of the publisher, and of the right of the defendant to offer in evidence mitigating circumstances, we think that the circumstance alleged was entirely proper. Certain it is that evidence on the part of the plaintiff that the defendant had promptly been informed of its error and had refused or failed to correct it would be admissible upon the issue of its malicious intent. If the plaintiff be allowed to establish such malicious intent, it seems but fair that the defendant be allowed to negative it. Upon the trial of the case, surely the defendant would be entitled to make this showing as evidencing its want of malicious intent. To strike it out of the answer would necessarily, by res adjudicata, deprive it of that opportunity.
The ninth paragraph alleges that pistols were found by the rural policeman who made the arrest, which were alleged to have been in the custody of the plaintiff and that he owned or had an interest in them.
If, as a matter of fact, the defendant could show that the plaintiff was actually carrying concealed weapons, and was actually violating the law, notwithstanding his acquittal, the fact would have bearing upon the amount of damages which the jury may allow. His reputation as a peaceful, law-abiding citizen would hardly be seriously damaged if such fact should appear. The defendant is entitled to show all the surrounding circumstances, particularly under a charge of malicious intent.
The judgment of this Court should be that the order in each of the four cases sustaining the demurrer in the matters complained of be reversed.
MR. CHIEF JUSTICE WATTS concurs. *Page 31