Duncan v. the Record Publishing Co. , 145 S.C. 196 ( 1927 )

In my opinion, this appeal turns largely, if not entirely, upon the correctness of the legal conclusion, announced in the opinion of Mr. Justice Marion, that the publication in question, taken in connection with certain extrinsic facts alleged in the complaint and established beyond controversy by the evidence, is susceptible of a defamatory imputation against the plaintiff, Mr. Duncan. In the opinion of Mr. Justice Marion, it is said:

"In the view that the publication itself disclosed the occasion, and contained all the facts relevant to the matter published, the validity of the appellants' conclusion that it contained no implication or suggestion of improper conduct on Duncan's part, and was not reasonably susceptible of the meaning ascribed thereto by the innuendo of the complaint, might well be doubted."

He adds:

"But, in addition to the facts contained in the publication itself, the plaintiff alleged and adduced evidence to establish the significant and relevant facts: (1) That the Canal Commission, upon which Duncan had been appointed a member just five days prior to the date of his letter to Robertson, was vested with ``plenary authority with respect to' certain litigation then pending between the State of South Carolina and the Columbia Gas Electric Company; (2) that Edwin W. Robertson, to whom said letter was addressed, owned a controlling interest in said company; and (3) that on the very day of the publication, Duncan, from his seat in the State Senate, had made a bitter and sensational public attack upon Robertson and his company and upon the press of Columbia."

And he concludes thus:

"Certainly, when the matter contained in the publication is read in the light of the foregoing significant facts, it would seem scarcely open to argument that the publication was reasonably susceptible of the meaning which the innuendo of the complaint ascribed to it, viz., that Duncan had invited the defendant Robertson to influence him in the discharge of his official duty by the extension of a personal loan, and had thereby been guilty, to all intents and purposes, of the crime of soliciting a bribe"; in other words, that Mr. Duncan's letter amounted to a proposition that, if Mr. Robertson would render the financial accommodation applied for, he (Mr. Duncan) as a member of the Canal Commission, would in return favor Mr. Robertson's interests in the canal controversy. With this conclusion I am not in accord, and will endeavor to show that it is not only "open to argument, but is erroneous."

Mr. Justice Marion has evidently proceeded in conformity with the settled principles of law clearly laid down by the Supreme Court of the United States in the case of Baker v.Warner, 231 U.S. 588; 34 S.Ct., 175; 58 L.Ed., 384, where Mr. Justice Lamar, speaking for the Court, says:

"Where words are libelous per se the Judge can so instruct the jury, leaving to them only the determination of the amount of damages. Where the words are not libelous per se and, in the light of the extrinsic facts averred could not possibly be construed to have a defamatory meaning, the Judge can dismiss the declaration on demurrer, or, during the trial, may withdraw the case from the jury [I interpolate by granting a nonsuit or by directing a verdict for the defendant]. But there is a middle ground where, though the words are not libelous per se, yet, in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning. Whether they [actually] have such import is a question of fact. In that class of cases the jury must not only determine the existence of the extrinsic circumstances, which it is alleged bring to light the concealed meaning, but they must also determine whether those facts, when coupled with the words, make the publication libelous."

From this declaration of the law, I understand that, in the determination of the issues involved in a libel suit, it is the duty of the Judge in the first instance to declare whether or not the words used are libelous per se; if so, the sole issue for the jury is the amount of the damages to be awarded; if not, the plaintiff goes out of Court by an order sustaining a demurrer, granting a nonsuit, or directing a verdict, unless the Judge, whose prerogative it is, should decide that although the words are not libelous per se, taken in connection with the extrinsic facts averred, the publication is susceptible of a defamatory meaning. The Judge decides that issue as a question of law, and, if so held, the double issue is presented to the jury as to the truth of the alleged extrinsic facts, and whether these facts, established, coupled with the words used, make the publication libelous.

It is not contended by the plaintiff that the publication was libelous per se; so the first hypothesis stated by Mr. Justice Lamar passes out of the case. The question is: Do the facts present a case which fits either the second or third hypothesis; that is: (2) Where the words are not libelousper se, and in the light of the extrinsic facts averred could not possibly be construed to have a defamatory meaning; or (3) where, though the words are not libelous per se, yet in the light of the extrinsic facts averred, they are susceptible of being construed as having a defamatory meaning? My very firm conviction is that the facts of this case come under the second hypothesis of Mr. Justice Lamar: "Where the words are not libelous per se, and in the light of the extrinsic facts averred could not possibly be construed to have" the defamatory meaning alleged in the innuendo of the complaint.

The extrinsic facts relied upon, in connection with the publication, to support the conclusion that both combined are susceptible of the defamatory imputation of soliciting abribe are, as stated by Mr. Justice Marion: (1) That the Canal Commission was vested with plenary powers in reference to the litigation then pending between the State and the Railway Gas Electric Company; (2) that Mr. Robertson owned a controlling interest in that company; and (3) that on the day of the publication Mr. Duncan had made in the Senate a bitter attack against Mr. Robertson and the press of Columbia. (Note. — In reference to this last alleged extrinsic fact, which is detailed as one alleged in the complaint, it was not only not alleged in the complaint, but was made the subject of a motion by the plaintiff to strike it out of the defendant's answer, the favorable result of which motion, on circuit, was reversed by this Court. 131 S.C. 485;127 S.E., 606.)

However great may have been the impropriety of Mr. Duncan, a member of the Canal Commission, in presenting an application for a loan to Mr. Robertson, who was directly interested in the settlement of the canal controversy, naturally creating the apprehension in the mind of Mr. Robertson that a refusal would generate a hostile attitude on the part of Mr. Duncan, and subject Mr. Robertson to criticism, such conduct falls very far short of the offense of solicitinga bribe, the only innuendo that has received any consideration in the opinion.

This case is different in one remarkable aspect from any other libel suit that I imagine could be found in the books. It is not based upon the publication of a communication of which the defendant was the author, but upon one of which the plaintiff was the author, at a time when he had full knowledge of every extrinsic fact connected with the controversy. He knew that he had become a member of the Canal Commission; he knew that Mr. Robertson was vitally interested in the canal litigation; he knew that he had written the letter two days before the act constituting the commission had been approved. It is difficult for me to understand, if Mr. Robertson is to be charged with a defamatory imputation in publishing Mr. Duncan's own letter, with the extrinsic facts within his knowledge, why Mr. Duncan should not be charged with a consciousness of the same imputation; a consciousness which he emphatically disavows, and which, if not present with him, could hardly have been so with Mr. Robertson.

The setting of this controversy, in my opinion, shows that Mr. Robertson, rather than Mr. Duncan, was the most aggrieved; that he was decidedly "more sinned against than sinning." A year after the application of Mr. Duncan for a loan had been declined by Mr. Robertson, during which time it does not appear that any specific act had been committed by Mr. Robertson, or the parties with whom he was connected, to stir his indignation, Mr. Duncan arose from his seat in the Senate, of which body he was a member, to a question of "personal and official privilege," and delivered a broadside philippic, full of vindictive vituperation against Mr. Robertson, the Columbia press, and the citizens who favored a certain settlement of the canal litigation, in terms of condemnation and most horrible suggestion, which are thus analyzed by the presiding Judge from the defendant's answer:

"That defendant had deceitfully induced certain men to represent to the Canal Commission that it was to the interest of the State and this community to settle the canal controversy, when, as a matter of fact, such men were seeking only to promote the selfish interests of defendant, as a result of his deceitful procurement. That defendant had bribed or had improperly influenced the newspapers to circulate propaganda that it was to the interest of the State to make the settlement, when in fact such newspapers were seeking only to promote the selfish interests of the defendant, as a result of his deceitful procurement.

"That defendant had entered into a deceitful arrangement with Stone Webster, Inc., whereby they should undertake to settle the canal controversy with the Canal Commission apparently for the benefit of themselves, when, as a matter of fact, they were acting only to promote defendant's interests, pursuant to such deceitful arrangement. That defendant had been feeding on dead men's bones; that is, that defendant was a ghoul. That the Company which defendant represents had lived on its betters, had taken advantage of the financial situation, and had never done anything for the development or advancement of the City of Columbia or of South Carolina. That defendant was an octopus. That defendant had dominated Chambers of Commerce and little towns, and had deceitfully persuaded them to take an active part in the matter, apparently for the best interests of the public, but in reality to promote the selfish interests of defendant, pursuant to his deceitful persuasion."

In his "usual vigorous style" he held the defendant up in the most august deliberative body in the State to the contempt and hatred of all good men, as one who had done nothing for the community of his birth, but had feasted upon the misfortunes of others — as one who was then through fraud and deceit, and the domination and control of his fellow citizens, evading his just obligation to the State. He ransacked history, sacred and profane, for the outstanding figures of perfidy, treachery, and deceit, with whom to compare his victim; he characterized him as a ghoul, among Eastern nations an imaginary evil being who robs graves and feeds upon corpses, the hyena of the human race:

"They are neither man nor woman;

They are neither brute nor human;

They are ghouls."

He could not have been more vituperative and vindictive than if he had invoked —

"* * * some chosen curse,

Some hidden thunder in the stores of Heaven,

Red with uncommon wrath, to blast the man

Who owes his greatness to his country's ruin."

It is apparent that he desired the fullest publicity to his address, which could have been delivered in executive session, but was not; he admits that he wanted it broadcast throughout the State; he knew that newspaper reporters were present, and gave them afterwards information about his speech, knowing that it was to be published; he admitted, when asked for the evidence upon which he had made the damnifying charges, that he had "nothing in the world but the atmosphericevidence."

Mr. Duncan has convicted himself of having made a most bitter personal attack upon Mr. Robertson, within the safety zone of the State Senate, under circumstances of extreme vindictiveness; an attack gratuitous and uncalled for by any urge of personal or official duty; most extraordinary in coming from a man who less than a year before had made a "personal" appeal for financial assistance; an attack upon such baseless "atmospheric evidence" that upon the trial of the case not the slightest effort was made to sustain the charges. I am not surprised that his counsel were not willing that it should appear in the record.

I see nothing in his address to the Senate which justifies the invocation of personal privilege in making such an attack; not a defense, as is customary. If any part of it related to "official" privilege (which is not familiar to me, although with some experience in such matters), the proper course for presentation would have been through the commission of which he was a member.

It was in reply to such an attack, slanderous to the last degree, that the publication, true, absolutely true, in every detail, admittedly so, was issued. The most natural, and, I think the only, inference to be drawn from it is that Mr. Robertson, smarting under the charges of chicanery and corrupting practices, presented in most repulsive form, and with the scorn which blistered as the leash of a scorpion's tongue, was moved in self-defense to show that Mr. Duncan had made them because of the refusal of his application for a loan, under the circumstances set forth in the publication, and not from the spirit of truth; in keeping with the apprehension he entertained upon receipt of the letter in the event of refusal, but worse, as it was personal, and not official, antipathy that he had provoked. As Mr. Robertson says in his testimony:

"When I was advised of Mr. Duncan's speech in the Senate, I was naturally very much incensed, and I intended that the public should have the benefit of his communication to me, so that they could see both sides, and why possibly his motive was rather that of ill will than trying to do any good for the State."

I feel assured that Robertson intended this, and only this, and that no other reasonable inference can be drawn from the publication; and, even if it went to the extent of suggesting impropriety, Mr. Duncan is shown to have been the author of his own misfortune. It is very clear, from Mr. Robertson's reply to Mr. Duncan's application for a loan, that he did not then consider that Mr. Duncan had committed the crime of soliciting a bribe. He doubtless thought then, as he testified, that it was an act of impropriety, embarrassing both to himself and to Mr. Duncan. As he states:

"When I got the letter, I was very much perplexed and worried, because I knew if I declined, I would run the risk of incurring the enmity of a member of the Canal Commission, and, if I made the loan, I would lay myself liable for being suspected for [of?] trying to influence the commission."

That the act of Mr. Duncan, in attempting to negotiate a loan with Mr. Robertson under the circumstances, was one of impropriety, I do not think that any one will deny. The extrinsic facts alluded to by Justice Marion, and stated above, simply emphasize that impropriety, and add nothing in the way of an inducement in supporting the innuendo. It was an act of impropriety, affecting both himself and Mr. Robertson; in subjecting himself to the suspicion that he was using the great power of his official position to induce a loan; and in placing Mr. Robertson in the embarrassing situation of apprehension that, if he refused the loan, he would generate a hostile attitude in Mr. Duncan to the great financial interests he had at stake, and that, if he granted it, he would subject himself to the suspicion of attempting to influence a most "vigorous" member of the Canal Commission.

It seems clear that, before Mr. Duncan could have been convicted of soliciting a bribe, the State would have been obliged to show, not only that Mr. Duncan had requested a loan of Mr. Robertson, but that he had promised to give something out of his official relation in return for the accommodation; and it seems equally clear that the imputation or inference should contain these elements of the offense before the publication can be held libelous per quod.

It is significant, in view of the interpretation that the publication amounted to a charge of solicitation of a bribe, that not a word was said in Mr. Duncan's letter to Mr. Robertson in reference to his position on the Canal Commission; not a word by Mr. Duncan suggesting any favor to be extended by him to Mr. Robertson in return for the loan. It is upon its face a plain, open business proposition, that Mr. Robertson should make him a loan of $25,000.00, upon security six times in value and to be inspected by a representative of Mr. Robertson on the ground. If the interpretation contended for by the plaintiff is to be sustained, then it must be inferred from the letter that such was Mr. Duncan's intention; a conclusion which Mr. Duncan repudiates, and which, to my mind, is altogether unthinkable. It is hardly conceivable that Mr. Duncan would have offered security "worth six times the amount of the loan desired," to be inspected and approved by Mr. Robertson's representative, if he had not intended to repay the loan, assuring Mr. Robertson, in addition, of the maturity of certain building and loan stock, which would mature in three years, the length of the credit, out of which the loan would be repaid. It seems to me an exceedingly far-fetched innuendo that Mr. Duncan expected to render Mr. Robertson favorable consideration as a member of the commission, in return for a loan which he says in his letter he could readily obtain from other sources, in return for a plain business, well-secured, accommodation; and it is evident that the charge of soliciting a bribe could not be sustained, in the absence of an intention on Mr. Duncan's part to render some official service in return for the accommodation.

But, putting the very worst construction possible upon the publication of the letter with a statement of the extrinsic facts, and assuming that Mr. Robertson intended to convey the impression that Mr. Duncan applied for the loan, under the circumstances, upon the assurance or belief that Mr. Robertson would be afraid, on account of his official connection with matters in which Mr. Robertson was vitally interested, not to grant the financial accommodation requested; in other words, that Mr. Duncan was using the "big stick" of his official position to induce favorable action upon his application; in the first place, no such innuendo is suggested in the complaint or discussed in the opinion of Mr. Justice Marion.

Inferences are attributed to Mr. Robertson from the publication. Without the slightest intention to reflect upon Mr. Duncan, except as to the impropriety of his application under the circumstances, it must be conceded that that act of impropriety was susceptible of the inference that he was using his official position to induce the loan. If the innuendo had charged that as an inference to which the publication, coupled with the extrinsic facts alleged in the complaint, was susceptible, I think that the Court would have been justified in so holding. Mr. Duncan had never before had financial dealings with Mr. Robertson; he had but two days before his application for the loan been appointed a member of the Canal Commission under the Act approved that day; he knew that Mr. Robertson was largely interested in the pending matter of a disposition of the canal; he knew that the Canal Commission was vested with large recommendatory powers at least, in connection with a settlement of the pending differences between the State and the canal owners; he had need of financial assistance; he must have known that his position as a commissioner would naturally incline Mr. Robertson to act favorably upon his application.

This may have savored of the inference that he was using his newly acquired power and influence to further his obtainment of the desired loan, which he intended fully to secure and pay at maturity; to inspire a fear in Mr. Robertson that his influence on the commission would be inimical to his interests, if the loan should be refused; but I cannot see how it is possible to say that it savored of the inference that he was "susceptible of bribery," or that he was thereby "soliciting a bribe," which are the innuendoes charged.

The crux of the inquiry is whether or not the extrinsic facts, stated by Justice Marion to have been alleged in the complaint, add anything to the construction of the publication as a defamatory imputation. They are, as stated, that the Canal Commission had plenary powers in the settlement of the litigation, and that Mr. Robertson was financially interested in that settlement. As I have stated, those facts simply emphasize the impropriety of Mr. Duncan's application, and lend color to the innuendo that might have been alleged, but was not, that Mr. Duncan was using his official position to induce the loan. This innuendo not having been alleged in the complaint, the defendant had no opportunity of establishing the truth of the inference of which the facts were susceptible, and it cannot be said that he would not have had a fair chance of establishing it.

If, then, the extrinsic facts referred to, add nothing by way of inducement to the strength of the inference alleged in the innuendo, the plaintiff is confined to the terms of the publication as uttered. The facts there stated are not only admittedly true, but the publication is not only not libelousper se, but legally innocuous, because absolutely true. A plaintiff in a libel suit has the right, if he so chooses, to rely solely upon the publication as it was uttered; and if the Court should decide it libelous per se, he is entitled to damages; or, conceding that it is not libelous per se, he has the right to allege certain extrinsic facts — that is, facts dehors the publication — which, coupled with the actual publication, develop the defamatory meaning of the publication. Where he alleges no such extrinsic facts, as in the case at bar, it seems to me clear that he is confined to a reliance upon the publication as it stands as being libelous per se.

In complaints for libel there are (where the publications are not libelous per se) three distinct parts: The inducement, the colloquium, and the innuendo. The inducement contains a statement of the extrinsic facts which, coupled with the actual publication, form the basis of the innuendo; the colloquium contains the application of the alleged defamation to the plaintiff (necessary at common law, but dispensed with by Section 425, Code C.P.); the innuendo contains a declaration giving point and meaning to the matters expressed in the actual publication, coupled with the extrinsic facts alleged to the inducement, not as a statement of new facts, but as the defamatory construction of which the entire combined elements are susceptible to the minds of those who might read the publication. 17 R.C.L., 393.Bell v. Clinton Mill, 129 S.C. 242; 124 S.E., 7.

In the last-cited case the Court said that notwithstanding Section 425 of the Code of Civil Procedure, "the inducement and the innuendo are as essential, under the circumstances stated, as they were at common law." (Note. — Attention is called to the omission of a line in the printed report of this case. 129 S.C. at page 251, line 15 from bottom, which correctly appears in 124 S.E., at page 10, line 7 from bottom of first column, and the insertion of a line which is a duplicate of line 15 from top, 129 S.C. at page 251.)

So in Hubbard v. University, 76 S.C. 510;57 S.E., 478, the Court, referring to the change as to the colloquium made by Section 425 of the Code, said:

"The change, however, does not obviate the necessity of setting out the facts which make language, not in itself defamatory, have that import [I interpolate, the inducement]."

In that case it is declared that the "universally accepted rule" is as thus stated in 13 Enc. P. P., 32:

"If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts andcircumstances must be set forth and connected with thewords charged, by proper averment." (Italics supplied.)

Reaffirmed in Oliveros v. Henderson, 116 S.C. 77;106 S.E., 855.

And the Court adds this:

"Many authorities will be found in other jurisdictions to the effect that the Code of Procedure has made no change in this rule of pleading. * * * Indeed, the rule is so manifestly founded on common sense and justice that probably

NOTE: In 129 S.C. 251, line fifteen from the bottom should read: "the bystanders understood. The import of the words used." — Reporter. nothing but an explicit enactment would lead the Courts to depart from it."

In the Hubbard case, it was held that, as the publication was not libelous per se, and as the complaint contained no allegation that on account of certain extrinsic facts it was understood by those who read it as defamatory, the complaint was demurrable. Exactly the situation in the case at bar.

In Power v. Miller, 2 McCord, 220, it was held that words charging a person with perjury are not actionable "unless it appear by a colloquium [inducement?] or by the words themselves, that they had reference to an oath taken in the course of a judicial proceeding."

In Ashbell v. Witt, 2 Nott McC., 364, it was held likewise that, where words are not actionable without a colloquium(inducement?), of which no evidence is given, the case will not be referred to the jury, but the Court will nonsuit the plaintiff.

In 37 C.J., 22, it is said:

"When the words are not actionable per se, it is necessary to plead in the inducement such extrinsic facts as will render the words actionable. * * * The averments must be of facts and circumstances which, by way of introduction, show the words in question to be actionable."

It is universally held that, the office of the innuendo being as above stated, the actual publication, coupled with the extrinsic facts alleged in the inducement, in its import, cannot be enlarged, extended, or changed by the innuendo. Thus in the Bell case, supra, the Court said:

"The import of the words used, coupled with the inducement, * * * the innuendo cannot enlarge, extend, or change" (citing Hubbard v. University, 76 S.C. 510;57 S.E., 478; 17 R.C.L., 393).

In Wilson v. Hamilton, 9 Rich., 382, the Court said:

"The new matter introduced by an introductory averment, in explanation of words doubtfully or ambiguously expressed, admits of proof; but an innuendo which is only explanatory, and connects together facts already known, either from the face of the paper or by reference to extrinsic matter, is never proved, nor admits of proof. * * * An innuendo cannot supply this defect, apparent on the declaration, and, as the necessary allegations are omitted, there was no evidence submitted proper for the consideration of the jury, and the nonsuit was, therefore, properly ordered."

In 37 C.J., 23, it is said:

"The want of a proper inducement or colloquium cannot be supplied by the innuendo. The innuendo cannot be used for the purpose of alleging new matter and extrinsic facts necessary in connection with the alleged publication to constitute a cause of action."

"Words not actionable per se cannot be made so by innuendoes."Penry v. Dozier, 161 Ala., 292; 49 So., 909.Moore v. Johnson, 147 Ky., 584; 144 S.W. 765. Holtv. Ashby, 150 Ky., 612; 150 S.W. 810. Brown v. IndependentPublishing Co., 48 Mont., 374; 138 P., 258. LanstonCo. v. Mergenthaler Linotype Co. (C.C.A.), 147 F., 871; Id. (C.C.A.), 154 F., 42. Wofford v. Press Co. (C.C.A.), 211 F., 961. Smith v. Agee, 178 Ala., 627;59 So., 647; Ann. Cas., 1915-B, 129. Fitzpatrick v. Age-HeraldPublishing Co., 184 Ala., 510; 63 So., 980; 51 L.R.A. (N.S.), 401; Ann. Cas., 1916-B, 753. Pollock v.Evening Herald Publishing Co., 28 Cal.App. 786;154 P., 30. Whitley v. Newman, 9 Ga. App. 89;70 S.E., 686. Wisner v. Nichols, 165 Iowa, 15; 143 N.W., 1020.Cooper v. Seaverns, 81 Kan., 267; 105 P., 509; 25 L.R.A. (N.S.), 517; 135 Am. St. Rep., 359. Hanson v. Bristow,87 Kan., 72; 123 P., 725. Curtis v. Iseman,137 Ky., 796; 127 S.W. 150. Moore v. Johnson, 147 Ky., 584;144 S.W. 765. Spears v. McCoy, 155 Ky., 1;159 S.W., 610; 49 L.R.A. (N.S.), 1033. Bishop v. Smith,198 Ky., 230; 248 S.W. 538. Vinson v. O'Malley,25 Ariz., 552; 220 P., 393; 37 A.L.R., 877. Med. Co. v.Caulk (D.C. Del.), 4 F.2d 126. Bowie v. News, 148 Md., 569; 129 A., 797. Manley v. Harer, 73 Mont., 253;235 P., 757. Bradburg v. Segal, 121 Me., 146; 116 A., 65.Crossland v. Freeman, 7 Boyce (Del.), 195; 105 A., 145.Hendrix v. Register, 202 Ala., 616; 81 So., 558. Wall v.Railroad Co., 18 Ga. App. 457; 89 S.E., 533. Wright v.Great Northern Railroad Co. (Mo.App.), 186 S.W. 1085.Furlong v. German American Press (Mo.), 189 S.W. 385.Irvine v. Barrett, 119 Va., 587; 89 S.E., 904; Ann. Cas., 1917-C, 62. Vitagraph Co. v. Ford (D.C.), 241 F., 681.Talbot v. Mack, 41 Nev., 245; 169 P., 25.

In Flaks v. Clarke, 143 Md., 377; 122 A., 383, the syllabus is:

"The office of an innuendo is to explain the words published, and to give them their true meaning, but it cannot introduce new matter, add to or enlarge the sense of those words, or impute to them a meaning not warranted by the publication, when taken alone, or read in connection with the inducement and colloquium."

"An innuendo cannot be used to change the ordinary meaning of words pleaded and give them a construction which they do not bear." McCormick v. Weinstein, 81 Pa. Super., 163.

"Words not actionable per se may be made to appear actionable by averring such extrinsic facts as will show that they were intended to be slanderous and were so understood. These averments must be distinctly stated in the inducement, and applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendoes." Phoenix Co. v. Robertson,80 Okla. 191; 195 P., 487.

In that case the plaintiff averred no extrinsic facts, and the Court said:

"The publication, without pleading extrinsic facts, would not bring the case within the rule stated above."

In its opinion the Court quotes an exceedingly clear statement from the Alabama Court in Gaither v. Advertising Co.,102 Ala., 458; 14 So., 788:

"In other words, the Court determines whether the words used are susceptible of the meaning sought to be given to them by the innuendo. If this inquiry is decided by the Court against the contention of the pleader, this puts an end to it; for it is not permissible to make proof that the words employed were uttered in the sense, or with the meaning, imputed to them in the innuendo. That is not the subject of proof. If it be decided by the Court that the words are susceptible of the meaning the innuendo seeks to ascribe to them, then it becomes a question for the jury to determine, under all the circumstances, whether they were intended to mean what the innuendo avers they did."

The complaint in this case contains no inducement; there are no extrinsic facts stated to add a new complexion to the publication; there is no implication stated in the publication from which an inference derogatory to the plaintiff might be inferred; the publication states only conceded facts; there is no controversy or doubt as to a single one of them; the reliance of the plaintiff is upon an inference or inferences drawn from these admitted facts; this is not permissible in order to make out the charge of libel.

In Simons v. Burnham, 102 Mich., 189; 60 N.W., 476, it is said:

"Actions for slander and libel do not lie upon inferences (Townsh., Sland. L., § 133), though we must recognize a distinction between inferences which are the natural result of implications contained in the language of the publication — which may, in a sense, render it ambiguous, and justify a construction at variance with the strict meaning of the words as ordinarily used — and inferences drawn only from the facts themselves. In the former case the action may lie — not because of the inference, but by reason of the implication; in the latter it will not."

"A party sued for libel may justify the charge as laid and deny the innuendo, and that when the truth is made to appear the fanciful or apparently warranted explanation by way of enlargement must disappear." American Tel. Tel. Co. v. Fry, 8 Tenn. Civ. App. 159.

It may be suggested that the foregoing furnished the ground for a general demurrer, and that, if the evidence supplied the needed averment, the defendant cannot now be heard to complain. While the Code specifically provides that the objection that a complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur upon that ground, which means that, notwithstanding such failure, the defendant may object to testimony tending to supply the deficiency, and may move for a nonsuit or a directed verdict, I think that, if the evidence is received without objection, the defendant will have lost the benefit of his adversary's neglect. In the case at bar there is in the evidence not a single extrinsic fact that would lend color to the alleged defamatory character of the publication. The only fact which bears even the suggestion of such color is that the occasion of the publication was the vitriolic explosion of the Senator from Union County, which furnished the amplest justification in Mr. Robertson to present the facts in explanation of his unwarranted gratuitous attack; a fact which the plaintiff in the former appeal inthis case (131 S.C. 485; 127 S.E., 607) sought to havestricken out.

The foregoing considerations, in my opinion, sufficiently demonstrate the duty of the Circuit Judge to have granted a nonsuit; but there is another ground upon which it should have been granted, and that is the immunity to which Mr. Robertson was entitled under the principle of qualified privilege, much more substantial, in my opinion, than the "personal and official privilege" under the justification of which Mr. Duncan secured the ear of the Senate. Upon the former appeal in this case (131 S.C. 485; 127 S.E., 607), in which the plaintiff sought to have stricken from the defendant's answer all reference to his senatorial tirade, the Court said, approving McLeod v. Publishing Co., 126 S.C. 366;120 S.E., 70:

"Indeed, there is authority for the proposition that one, in an honest effort to defend himself from a charge, if it is done without malice, may make statements that would otherwise be slanderous and then go free because his reply is entitled to a privilege,"

— 17 R.C.L., 364, where it is said:

"In an honest endeavor to vindicate himself and his own interests, a person is often privileged to make statements which would otherwise be regarded as defamatory. Thus, if one's good name is assailed in a newspaper, he may reply, defending himself, and, if his reply is made in good faith, without malice, and is not unnecessarily defamatory of his assailant, it is privileged. Even though false, a publication which is fairly an answer to a libel, if published in good faith for the purpose of repelling a charge, is privileged."

"The law justifies a man in repelling a defamatory charge by a denial or by an explanation. He has a qualified privilege to answer the charge, and if he does so in good faith, and what he publishes is fairly in answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged." 36 C.J., 1267.

I think that both of these conditions concur in establishing the qualified privilege of Mr. Robertson. There can be no question but that his "good name" was not only assailed, but absolutely annihilated, if the senatorial audience gave heed to the invectives of Mr. Duncan. The only basis for his excoriation was "atmospheric evidence," the floating rumors of the unresponsible. What was Mr. Robertson to do? Submit like a cowering cur, or resent it with violence? The law forbids the latter; he was unwilling to adopt the other, and, in my opinion, did what he was legally justified in doing, explain the motive behind the attack, and leave the public to question its truth or justice.

In my opinion, the judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for the entry of an order of nonsuit under Rule 27.

ON PETITION FOR REHEARING AND FOR COURT EN BANC