The opinion of the court was delivered by: E.H. Henderson, Acting Associate Justice.
Only one question is involved in this case. Is it libelous per se to publish in print of a white person that she is a Negro?
The defendant is the publisher of the Anderson Daily Mail, a newspaper of wide circulation. On March 11, 1954, the paper printed a statement, under the heading "Negro News" and under the picture of a colored soldier, that the son of the appellant had been transferred to a government hospital.
An action for libel was tried before Honorable James M. Brailsford, Jr., and a jury. The appellant testified that she is a white person, and that the statement was published about her son, naming her as his mother. The respondent offered no testimony. It moved for a directed verdict on the ground that there was no evidence of actual malice or of special damages, and that it is not actionable per se to publish of a white person that she is a Negro. The presiding judge directed a verdict in favor of the respondent, and the plaintiff has appealed.
Our earliest reported case on this subject is Eden v. Legare, 1 Bay 171, 1 S.C.L. 171, decided in 1791. It is in the very first volume of the law reports. It was there held that calling a white man a mulatto is actionable in itself.
In Wood v. King, 1 Nott & McC. 184, 10 S.C.L. 184, decided in 1818, the Court again held that to call a white person a mulatto is actionable per se.
In a case decided in 1821, Atkinson v. Hartley, 1 McC. 203, 12 S.C.L. 203, the Court said that it had frequently been decided that calling a white person a mulatto was actionable.
We come next to the case of Flood v. News and Courier Company, 71 S.C. 112, 50 S.E. 637, and its companion case of Flood v. Evening Post Publishing Company, 71 S.C. 122, 50 S.E. 641, decided in 1904. It was published that the plaintiff was colored. The defendant demurred to the complaint on the ground that under the provisions of the thirteenth, fourteenth, and fifteenth amendments to the Constitution of the United States the use of the word "colored" applied to any one is not libelous or defamatory. The trial judge sustained the demurrer. On appeal to this Court, Chief Justice Pope wrote a vigorous opinion, holding that the Federal amendments in no way affected the social relations of the two races, nor made any change in the law of this State under which it is libelous to publish that a white person is colored.
The other three members of the Court, Justices Gary, Jones, and Woods, concurred "in the result, as the complaint alleges that the publication was willful and malicious". Judge Brailsford, in the present case, construed that to mean that the majority of the Court held that it is not actionable per se to publish of a white person that she is a Negro unless the publication is done wailfully and maliciously. We do not think that interpretation is the correct one. We do not understand that the three Justices held that the publication was not libelous per se unless done wailfully and maliciously. We believe that they decided that since the complaint expressly alleged that the publication was wilful and malicious, and for that reason was sufficient to call for the overruling of the demurrer, the Court would not consider other matters which were not necessary to a decision of the case.
Nowhere in the Flood case is it undertaken to overrule the earlier cases. Judge Brailsford says in his order that there is no question but that under the older decisions the law of the State was that it was actionable per se to publish of a white person that he is a Negro. That is correct; and we think that the long established rule is not changed by the Flood decision and is still the law of this State.
In Whitaker v. Sherbrook Distributing Company, 189 S.C. 243, 200 S.E. 848, 849, the Court said: "The words must be of such character that a presumption of law will arise therefrom that the plaintiff has been degraded in the estimation of his friends or of the public, or has suffered some other loss either in his property, character, reputation or business or in his domestic or social relations."
Written words tending to diminish the respectability of the person to whom they relate are libelous and actionable. Black v. State Company, 93 S.C. 467, 77 S.E. 51.
"`If a written or printed publication tends to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public,'" it is libelous per ...