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June 18, 1956


The opinion of the court was delivered by: Stukes, Chief Justice.

June 18, 1956.

The complaint in this action for damages for libel will be published herewith, omitting the caption and prayer for judgment.

The defendants demurred upon the general ground that the complaint does not state a cause of action. Upon argument, the demurrer was overruled by formal order and defendants have appealed. They made five points in the lower court, four of which have been preserved by exceptions upon appeal. We shall discuss and dispose of them in the order in which they are presented in the brief.

It is first contended that the alleged libelous statement was in the alternative, and therefore not actionable. The following is quoted in the brief from the 4th edition of Newell, Slander & Libel, page 273: "Where a charge is made in the alternative, ordinarily both alternatives must be defamatory to render the charge actionable." Two rather old cases are cited by the author in the footnotes to sustain the text. In Blackwell v. Smith, 8 Mo. App. 43, it was held that the following statement was not actionable: "You are a thief, or you got the book from a thief." There was the same result in Lukehart v. Byerly, 53 Pa. 418, where it was charged by the defendant that the plaintiff had taken apples or had stolen apples or had taken apples without asking for them. We do not approve or disapprove these authorities; they are inapplicable to the facts which are alleged in the instant complaint.

Appellants omitted from the quotation in their brief the remainder of the section of Newell, which, indeed, is a part of the sentence from which they quoted; it follows:

"* * * but if the statement taken as a whole, is such that it will not admit of any other reasonable construction except that the person referred to in such statement participated in or connived at the doing of the main act charged which was libelous, then the entire statement is libelous."

In Dennison v. Daily News Pub. Co., 1910, 86 Neb. 862, 126 N.W. 764, 765, the offending publication was, "`this man either threw the bomb, hired some one to throw it, or knows who did it.'" The court instructed the jury that it was libelous per se, to which defendant excepted on appeal after verdict and judgment for plaintiff. The following reasoning and conclusion of the court in overruling the exception, are applicable to the facts of the case in hand, as they are alleged in the complaint:

"While we concede that ordinarily a charge made in the alternative might not be libelous per se, we think that the language here quoted, taken in connection with the whole article, is not susceptible of any other reasonable construction except that `this man' either threw the bomb, hired some one to throw it, or had guilty knowledge as to who did it. In other words, we think it fairly charges that `this man' was an active or at least a passive participant, in, and connived at the throwing of that bomb. The court therefore did not err in instructing that this language constituted a libel per se."

Flowers v. Price, 192 S.C. 373, 6 S.E.2d 750, 752, was an action for slander. The offending statement was: "`Some one stole thirty pounds of another man's tobacco back here in the warehouse and how do we know that you did not take his tobacco and put it on yours and carry it over to the other warehouse.'" Demurrer to the complaint was overruled and the following quoted with approval from Odgers on Libel and Slander (1st Am. Ed.) 116: "It is not necessary that the defendant should in so many words, expressly state the plaintiff has committed a particular crime. * * * Any words which distinctly assume or imply the plaintiff's guilt, or raise a strong suspicion of it in the minds of the hearers, are sufficient.'"

Forbes v. Johnson, 11 B. Mon. 48, 50 Ky. 48, was concerned with an alleged libel relating to a promissory note which had been held by two brothers as partners. It was generally charged by the defendants that the note had been fraudulently altered, without identifying the brother who was claimed to have made the fraudulent alteration. One of them brought the action for damages for libel and a ground of demurrer was that there was not enough in the declaration (complaint) to justify the innuendo (colloquium) that the charges were intended to be made against the plaintiff. This ground of demurrer was overruled and the court said:

The complaint in the case at bar contains allegations (in paragraphs 3 and 4) that plaintiff was the "official(s)" referred to in the publication and was well known to the defendants and to the public to be such.

Atkinson v. Hartley, 1 McCord 203, cited by appellants, is not in point. The witnesses, who heard the allegedly slanderous statement there, were uncertain whether the words were such as to constitute slander or were, in fact, other words which were not actionable. The distinguishing difference between that case and this is manifest.

The second assignment of error is that it does not appear upon the face of the complaint that the statement was published of and concerning plaintiff. We think it entirely untenable. The complaint alleges in paragraph 3 the professional representation of the school districts by the plaintiff as attorney, and that from prior newspaper publications it was generally known that the plaintiff, in that capacity, was the only person who was releasing the retractions. Moreover, it is alleged in the latter portion of paragraph 4 that the release to the press of the specified retraction which appears to have caused the publication ...

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