Duncan v. Record Publishing Co.

The opinion of the Court was delivered by Mr. Justice Fraser. The respondent’s statement of the case is as follows: “This is an action commenced by the plaintiff against the. Record Publishing Company and E. W. Robertson for libel in a publication made by the Columbia Record of a letter by the plaintiff to the defendant, Edwin W. Robertson, which was furnished by said Robertson to the newspaper for publication, and published on March 11, 1924, during the session of the General Assembly of which Mr. Duncan was a member, being a senator from Union County. “Each of the defendants answered the complaint, and, in addition to pleading general denial and the truth of the publication, pleaded as additional defenses: “Privileges oe Legislator “ ‘That on the morning of March 11, 1924, * * ■ * the plaintiff arose in the Senate of South Carolina then sitting *488 and delivered a malicious and defamatory speech concerning defendant, of which Exhibit A, hereto attached and made a part hereof, is a fair and substantially correct report.’ Substantially the same allegation is made by the defendant, Record Publishing Co. “The Court will observe that each of the defendants admit that the plaintiff, Duncan, was, on March 11, 1924, a member of the State Senate of.South Carolina from Union County, and that as such he was and had been since March, 1923, a member of the canal commission provided by the •Public Act of March 26, 1923, 33 Stat. 828, continued under the Act of March 8, 1924, 33 Stat. 1839. “Demurrer and Motion to Strike “Defendants each undertook to set up by way of privilege and justification, as well as in mitigation (Case, folios 39, 78, 90), in substance that the plaintiff had, in a speech in the Senate on the morning of- March 11, made a malicious and defamatory attack upon each of the respective defendants. “The nature of the attack is set forth and contained in an account added to the answer of the defendant Robertson, Exhibit A, Case, folios 47-66, which he states ‘is a fair and substantially accurate report.’ “In this connection we would call the Court’s attention to the fact that, when the matter which plaintiff charges as libelous was published on the afternoon of March 11, 1924, there had been and could necessarily have been no publication of the speech of the plaintiff, except such as should be published the same afternoon and in the same paper ( Columbia Record), and a reference to the same shows a very short, imperfect, and garbled account of the speech of the plaintiff, Duncan, if Exhibit A is to be taken as a correct and fair report. But Exhibit .A is a copy of what appeared in the State of the next morning, March 12.” The plaintiff-respondent moved ■ to strike out of the answers the statement of facts. This motion was granted, *489 and the defendant appealed. The statements were struck out mainly on the ground that the speech of the plaintiff was made in the Senate in the discharge of the duties of the plaintiff as a senator, and therefore privileged. Much learning has been used and much refinement upon the question of privileged communications, but really it is unnecessary to consider these refinements, as fundamental principles are sufficient. It must be observed that the plea of privileged communications is a shield and not a sword. This is not an action against the plaintiff for slander, nor a counterclaim, but strictly a defense. In McLeod v. American Publishing Co., 126 S. C. on page 366; 120 S. E., 70; 71 we find: “ ‘The cause and manner of speaking the slander are in all cases proper to be given in evidence in order to guide the jury in the assessment of damages, * * * and all the circumstances of hearing the slander first published and the manner of repeating it ought to be duly considered by the jury in mitigation or in aggravating the damages, Easterwood v. Quin, 2 Brev. p. 64; 3 Am. Dec., 700,” —and if it can be proved it should in fairness be alleged. There is no claim that this speech was made in executive session. The plaintiff’s claim, if allowed, would permit a member of the Legislature in a session open to the world, with reporter in sight, to make the most hurtful statements about a private citizen knowing that they would be published to the world, and deny to the injured citizen the right to deny the truth of the charges anywhere. Indeed, it .is claimed that a member of the Legislature has the right to let not only the legislative body, but his constituents, know what he has said; that is, a legislator may say in open session and for publication and to his constituents and the world that a certain man has confessed to him that he (the private citizen) is a thief, and, if the citizen denies the charge, the legislator may bring suit against the- citizen for slander, in that in his denial of the charge the citizen has accused the legislator of being a liar and the citizen is denied the right *490 to defend himself, by reason of the doctrine of privileged communications. We have been cited to no law, and we know of none, to sustain such a proposition. 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. pp. 364; 365. The order striking out the allegations from the answers is overruled and reversed. Messrs. Watts and Marion concur. Mr. Chief Justice Gary and Mr. Justice; Cothran did not participate.