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DRAKEFORD v. DIXIE HOME STORES

November 11, 1958

MRS. THELMA C. DRAKEFORD, APPELLANT,
v.
DIXIE HOME STORES, RESPONDENT.



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

November 11, 1958.

The appellant, Mrs. Thelma C. Drakeford, instituted this action against Dixie Homes Stores, Inc., the respondent, to recover damages on account of certain alleged slanderous words spoken of and concerning the appellant by the manager of a store of the respondent.

The complaint alleges that the appellant had been a patient in Tuomey Hospital in the City of Sumter, and while there was permitted to brew and have coffee in her room. The appellant was discharged from the said hospital and returned to her home on July 18, 1957. She left at the hospital some articles of personal property, including a small jar of coffee which she asserts had been purchased for her by her brother before her discharge from the hospital. The appellant returned to the hospital on July 19, 1957 for the purpose of obtaining the articles of personalty left there upon her discharge. She placed the small jar of coffee in a shoulder bag which she was wearing, leaving the top of said bag open. Thereafter, she went to the self service store of the respondent for the purpose of purchasing groceries. The appellant used a wire push cart in which she placed the groceries selected by her in the store of the respondent, and when she had completed the selection of her groceries, she carried the articles in the push cart to the counter of the cashier where they were taken out of said cart and placed on the counter. After the cashier had checked the articles so purchased the appellant paid the purchase price thereof. The appellant then alleges that as she started to leave the cashier's counter, the top of her shoulder bag still being open and the jar of coffee therein being visible, the manager of the store said to the appellant, in the presence of the cashier and other persons, "Have you paid for that coffee you have got in your bag?" The appellant asserts that she took the coffee out of her bag and explained to the manager that the coffee had not been purchased in the store of respondent. Whereupon, the manager turned away and started to the rear of the store. The complaint alleges that the appellant then stated to the cashier, in the presence of others, referring to the manager, "He has deliberately charged me with stealing this coffee."

The respondent demurred to the complaint upon the grounds which may be summarized as follows: (a) That the words alleged to have been spoken do not impute to the appellant the commission of any criminal or actionable offense; (b) In that the words alleged to have been spoken by appellant show that they were spoken as an invitation to slander; (c) In that the properly pleaded facts do not show any intent on the part of the respondent to charge an actionable offense.

The lower Court sustained a demurrer to the complaint upon the ground that it does not state a cause of action for slander. In the order of the lower Court, the following is stated: "As a matter of law the question of the manager was as to a matter of concern to both plaintiff and himself and therefore privileged."

The appellant, upon three exceptions, poses the following questions: (1) Was the trial Judge in error in sustaining the demurrer upon the ground of privilege? (2) Was the trial Judge in error in sustaining the demurrer upon the ground that the question or words complained of were invited? (3) Was the trial Judge in error in sustaining the demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action?

We agree with the appellant that in an action for slander the issue of privilege is a matter of defense and hence is not ordinarily available on demurrer.

In the case of Rivers v. Florence Printing Co., 141 S.C. 364, 139 S.E. 781, 782, this Court said:

"Appellants take the position that the demurrer should have been sustained on the ground that `the communication was qualifiedly privileged and made on an occasion which commanded the publication of the same,' citing as authorities for this position 25 Cyc., 275 and 385, and 17 R.C.L., 341. The defendants cannot get the benefit of the defense `qualified privilege' without setting it up as an affirmative defense."

In the case of Bell v. Bank of Abbeville, 208 S.C. 490, 38 S.E.2d 641, 643, it was said:

"On the face of the amended complaint, the alleged defamatory statements appear to have been made upon a privileged occasion. But whether or not the privilege was exceeded is an issue to be met upon the trial of the case, in which the burden will be upon the plaintiff to show express or actual malice. This question cannot be decided upon a demurrer to the complaint. The defendant cannot get the benefit of the defense of qualified privilege without setting it up as an affirmative defense. Rivers v. Florence Printing Co., 141 S.C. 364, 139 S.E. 781."

There is an excellent discussion of how the defense of privilege in a defamation action may be raised in 51 A.L.R.2d, at page 552. The two south Carolina cases above referred to, and from which we have quoted, are cited in this annotation. We think that whether the words spoken by the manager of respondent were privileged is a matter of defense and not a question for determination by demurrer.

The second question presented by this appeal is whether the words alleged to have been spoken by the appellant show that they were spoken as an invitation to slander. We do not think that this question is properly before this Court for decision. A review of the order sustaining the demurrer of the respondent to the complaint reveals that the trial ...


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