February 4, 1913. The opinion of the Court was delivered by This is an action for libel. The following is the complaint:
"The plaintiff above named complaining of the defendant above named alleges:
1. "That the plaintiff is a citizen and resident of the city of Columbia, county of Richland, and State of South Carolina, and engaged as a plain business man in the business of real estate and insurance, and also as secretary and treasurer of two building and loan companies in the said city of Columbia.
2. "That the defendant is a corporation duly chartered under and by virtue of the laws of the State of South Carolina, and its principal place of business being located in *Page 469 Columbia, in the said State, and its principal business being the publication and circulation of a daily newspaper known as `the State,' which said newspaper has a wide circulation in the said city of Columbia and throughout several States, including the State of South Carolina.
3. "That the said plaintiff, while exercising his rights as a citizen on Tuesday, May 3, 1910, which was election day in the said city of Columbia, was threatened and warned away from the voting precinct in the said city of Columbia by the defendant herein, which threats and warnings to the plaintiff consisted in a statement by the defendant that if the said plaintiff did not leave the voting precinct and cease his efforts to influence voters to vote against one Charles C. Wilson, who was at that time a candidate for councilman for the said city of Columbia, that the said defendant would write up the said plaintiff in the newspaper known as `The State,' and thereby ruin the business of the said plaintiff.
4. "Subsequent thereto, to wit, on May 4, 1910, the newspaper known as `The State,' published and circulated by the defendant herein contained the following news item on page 1:
"`Wilson defeated by fifty votes. He was fought at the polls by Fingal C. Black's friends. Vote nearly as large as that of the week before.
"`The defeat of C.C. Wilson was deplored by his friends last night. A terrific fight had been sprung on him in the last 24 hours, and before his friends could offset the attack, the voting was on. Brothers of Fingal C. Black were at the polls yesterday urging voters to cut Mr. Wilson. It will be recalled that there was a bitter controversy between Mr. Wilson and Mr. Black 18 months ago, and Mr. Wilson was sustained by council.'
"That the plaintiff herein is one of the brothers of Fingal C. Black referred to in the said paragraph. *Page 470
5. "That in the same issue of the above named paper appears the following editorial on page 4 of the said newspaper:
"`Columbia's commission. The commission to manage the municipal affairs of Columbia under the new form of government was completed yesterday by the election of three councilmen, Messrs. Blalock, Steiglitz and Keenan. In the first primary W.H. Gibbes was elected mayor and R. W. Shand, councilman.
"`The State regrets the defeat of Charles C. Wilson and Charles Narey, because it believes their services to the people of Columbia would have been exceptionally valuable. It regrets, too, the methods, unfair and discreditable, that were used to compass the defeat of Mr. Wilson. We do not recall a parallel in Columbia.
"`But the commission is elected, and will receive from us the most cordial support in its work for Columbia. We have confidence in the ability and in the progressiveness of the majority of the board, and faith in the ability of our new system to get the best out of all councilmen. We hope the regrets now entertained at the loss to the commission of the services of Wilson and Narey will be speedily removed by the efficiency of the work performed by the councilmen chosen in their stead.
"`Columbians have their faces turned toward a period that has promise of exceptionally great prosperity. Opportunity, in several guises, is knocking at our doors. The economical, progressive, energetic, management of a city is the surest guarantee of peace, prosperity, and happiness. Columbia now has the way opened for good government, and The State promises its most cordial support to each and every member of the new commission in an effort to make Columbia conspicuous among the cities of the south-east for the wise administration of her affairs. *Page 471
"`A new order of things has come. Past policies will be abandoned, and a strict accounting exacted. Columbia shall have good government, and shall take her place at the very front.'
"That the said editorial in connection with the local on page 1 of the said newspaper as above set forth directed public attention to the plaintiff herein and denominates his methods of fighting the said Mr. Wilson as unfair and discreditable, and that the said libellous publication was malicious and false, and intended to impeach the honesty, integrity and reputation of the plaintiff herein, and, therefore, to expose him to public hatred, contempt, ridicule and obloquy and to injure him in his business and occupation.
6. "That subsequent to the libellous publication above set forth on the morning of May 5, 1910, the said defendant published the following editorial on page 4 of `The State:'
"`Assassination at the polls. Doubtless Fingal C. Black and his relatives are pleased with the part they played on Tuesday, and doubtless they are not concerned in `The State's' conception of that part. Nevertheless as they took a public position contrary to the will of nearly seven hundred Columbians, it is our privilege, in behalf of those 682 voters and in behalf of all men who wish a fair fight, and a square deal in politics, to express the opinion that their policy was unfair, and an injustice and offense to this community, which is striving for good government.
"`The details of the enmity of Mr. Black to Mr. Wilson are not now material. It is sufficient for the public understanding to know that while working on Columbia's streets as engineer, under Mr. Wilson, a disagreement arose, and it became impossible for the subordinate to longer hold his place. Then, if we remember, Mr. Black made charges against the efficiency of the work done under Mr. Wilson's direction. Council took up the charges, and a committee made exhaustive examination of the work. That committee *Page 472 was not a `Wilson' committee. It is a coincidence that one of its members, Mr. Keenan, gets to council as the result of the attacks made upon Mr. Wilson, when those attacks were declared by Mr. Keenan, in his official capacity, to be without merit or justification.
"`The Wilson-Black incident is so old as to be forgotten, or but of indistinct memory to most busy people. It was thrashed out, and settled in Wilson's favor, the public sustaining action of council. Nothing more is heard of it. Meantime the form of government is changed and many Columbians, with and without property, and seeking the best men to do the city's work, are anxious that Wilson's services be secured. He is asked to be a candidate, and consents. There is a campaign meeting, and he addresses the people. There are editorials and letters published in his favor. For two weeks no word is heard against him.
"`But on election day the personality of the Black family is conspicuous at the polls, and its members work `against Wilson.' What they whisper into the ears of the uninformed we do not know; Wilson nor his friends may not know. But we do know there is no chance for any man against that sort of organized insidious attack.
"`Now, we hold that the people of Columbia had rights in this matter. Fair dealing to Wilson demanded notice of attack, but we'll let that pass. If there was anything against Mr. Wilson that might render him unfit to hold a position that hundreds considered him peculiarly qualified to hold, it was the right of Columbians to be informed of the charges in time for investigation. It was the right of the business men who wished the services of Mr. Wilson on street work, or in other important departments, to know Mr. Black's complaint, if he had one. With a large field from which the comparatively indifferent voters may pick candidates, few men are so inherently strong and popular as to escape assassination at the polls when a number of men organize *Page 473 for secret attack on one particular man. The object of the assault is deprived of any chance of defense, and his friends are helpless. They can not defend against unknown attack. They can not say a man is being victimized because he has performed his duty to the public; nor can they know whether the charges are well founded so they may withdraw their friend from slaughter.
"`We hope the public sentiment will so condemn this policy that it will never mar another election in this town.'
7. "That the plaintiff herein is a brother of Fingal C. Black and one of the relatives referred to in the above editorial headed `Assassination at the Polls.'
8. "That the said publication above set forth was wilful, malicious and false, and tended to impeach the honesty, integrity and reputation of the plaintiff, to injure his character and reputation, and to expose him to public hatred, contempt, ridicule or obloquy, and to injure his business or occupation, and by reason thereof the said plaintiff has been damaged in the sum of fifty thousand ($50,000) dollars.
"Wherefore, the plaintiff prays judgment against the said defendant in the sum of fifty thousand ($50,000) dollars, and for the costs of this action."
The complaint in the case of E.O. Black is identical with the complaint in the John E. Black case, last above quoted, with the exception of paragraph one, which, in the E.O. Black case, is as follows:
"`That the plaintiff is a citizen and resident of the city of Columbia, county of Richland and State of South Carolina, and his business being that of a builder and contractor.'
The complaint in the case of Fingal C. Black differs from the complaint in the John E. Black case in that paragraph one alleges plaintiff to be "by profession a civil engineer;" it does not contain the allegation appearing in paragraph three of the John E. Black complaint, and reading as follows: *Page 474
"Was threatened and warned away from the voting precinct in the said city of Columbia by the defendant herein, which threats and warnings to the plaintiff consisted in a statement by the defendant that if the said plaintiff did not leave the voting precinct and cease his efforts to influence voters to vote against one Charles C. Wilson, who was at that time a candidate for councilman for the said city of Columbia; that the said defendant would write up the said plaintiff in the newspaper known as `The State,' and thereby ruin the business of the said plaintiff;" and the allegations found in paragraph seven of the John E. Black complaint are entirely omitted.
The defendant demurred to the complaints on the ground that they do not state facts sufficient to constitute a cause of action. The demurrer was sustained and the complaints dismissed. From the order sustaining the demurrer the plaintiff appealed. This is a demurrer and for the purposes of the demurrer, the allegations are taken as true.
The appellant states four tests as to the distinction between legitimate criticism and actionable libel, the second of which (quoting from Odgers and also from Newell on Slander and Libel). is "2. Criticism never attacks the individual but only his work."
The complaint alleges that the plaintiff was threatened and warned on May 3d that if the plaintiff did not leave the voting precinct, and cease his efforts against Wilson, the defendant would write up the plaintiff in the newspaper known as "The State" and thereby ruin the business of said plaintiff. That on the 4th and 5th articles appeared censuring the plaintiff. That on May 5th there appeared an article in which the plaintiff's conduct is thus characterized: "He (Wilson) is asked to be a candidate and consents. There is a campaign meeting and he addresses the people. There are editorials and letters published in his favor. For two weeks no word is heard against him. But *Page 475 on election day the personality of the Black family is conspicuous at the polls and the members work against Wilson. What they whisper into the ears of the uninformed we do not know; Wilson nor his friends may not know. But we do know there is no chance for any man against that sort of organized insidious attack." The complaint alleges that this statement is maliciously untrue.
In Flood v. News and Courier Co., 71 S.C. 116,50 S.E. 641, this Court says: "Written words tending to diminish the respectability of a person to whom they relate and to expose him to disgrace and obloquy, although they do not impute the commission of a crime, are libelous and actionable, although no special damages are alleged or proven."
It must be assumed under the demurrer that the defendant threatened to destroy plaintiff's business, and in pursuance of that purpose falsely and maliciously charged in its paper that the plaintiff refrained from making an open charge against a candidate for public office at a proper time, and afterwards resorted to secret, insidious, and discreditable charges, when it was too late for the candidate and his friends to refute them. Taking these allegations as true, the question would be for the jury to determine whether the limits of fair criticism had been passed in the discussion of public affairs and the plaintiffs unjustly exposed to obloquy and disgrace. The question when criticism and statements cease to be fair and honest, and become libellous is usually for the jury and can rarely be decided on demurrer.
It is true that a demurrer was sustained to the complaint in Hubbard v. Furman University, 76 S.C. 510,57 S.E. 478. But that was a case where the only reasonable meaning that could be given to the publication was a meaning free from libellous import; and the Court thus stated the law: "In determining whether words are libellous, they are to be given their ordinary and popular meaning; and if they are susceptible of two meanings, one libellous and the other *Page 476 innocent, the former is not to be adopted and the latter rejected as a matter of course, but it must be left to the jury to determine in what sense they were used. Davis v. Johnson, 2 Bailey 579; Marshall v. Gunter, 6 Rich. 431. If the words are plainly libellous, or wanting in any defamatory signification, it is the province and duty of the Court to say so. Where the meaning is doubtful, it is the province of the jury to decide. Note, 4 Am. Dec., 351; Barrows v. Bell, 66 Am. Dec., 479; Hays v. Press Company, 14 Am. St. 784; St. James Military Academy v. Gaiser, 46 Am. St. 502." See also, Triggs v. Sun P. P. Asso. (N.Y.), 103 Am. St. 841 and note; Holmes v. Clisby, 121 Ga. 241,48 S.E. 934, 104 Am. St. 103 and note, Burt v. AdvertiserNewspaper Co. (Mass.), 13 L.R.A. 97 note; White v.Nichols, 3 How. 3, 11 Law Ed. 591; Newell on slander, 290.
The demurrers must be overruled and the judgment reversed.