Rivers v. Florence Printing Co.

October 7, 1927. The opinion of the Court was delivered by This action by the plaintiff W.W. Rivers, against the defendants Florence Printing Company, a corporation, and J.B. Parnell is a suit for $10,000 damages on account of certain alleged libelous matter published in the MorningNews Review, a newspaper published by the defendant Florence Printing Company. The defendants demurred to the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

The matter came on for a hearing before his Honor Judge Shipp, who issued an order overruling the demurrer and giving unto the defendants 20 days within which to answer the complaint. From this order the defendants have appealed to this Court. The complaint, demurrer, order, and exceptions will be reported.

In view of the full discussion of the law governing 1, 2 this case in the recent decisions of this Court (seeBurn v. Evening Post, 140 S.C. 21; 138 S.E., 520;Murphy v. News and Courier, 139 S.E., 189, 141 S.C. 51; and Duncan v. Record Publishing Co., et al., filed September 21, 1927), we consider it unnecessary to enter into a discussion of the law at this time. Bearing in mind the principle that, for the purpose of consideration of a demurrer, the demurrer admits as true allegations of the complaint, and giving to the allegations the liberal construction to which they are entitled under the rule, we are clearly of the opinion that the complaint states a cause of action.

Appellants take the position that the demurrer should have been sustained on the ground that "the communication was qualified 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.

The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.