136 S.E. 637 | S.C. | 1927
January 14, 1927. The opinion of the Court was delivered by This is an appeal from an order of his honor, Judge Whaley, of the county Court of Richland county, overruling a demurrer interposed by the defendant to the plaintiff's complaint, upon the general ground that it dose not state facts sufficient to constitute a cause of action.
The complaint alleges in substance that the plaintiff issued his check on the Columbia National Bank to one Mrs. Warwick for $2.50, in payment of a bill; that at the time he had sufficient funds on deposit with said bank to meet the same; that Mrs. Warwick deposited the check to her credit in the defendant bank; that the defendant bank failed and refused to present the check to the bank upon which it was drawn, but returned it to Mrs. Warwick with a notice pinned to it stating, "We hereby charge your account and return herewith items listed, H.H. Cox, $2.50," without giving any reason therefor; that by said notice the defendant intended to, and did charge in effect, that the plaintiff had given a check without funds to meet it; that he was not careful in his business dealings; that it had presented the check, as it was its duty to do, to the bank upon which it was drawn, and that payment had been refused; that the plaintiff was thereby guilty of a crime in violation of the "bogus check" law; and that that was the understanding of Mrs. Warwick and of other persons — all to his damage $3,000. *384
The defendant interposed a demurrer upon the general ground, without specifications, upon the hearing of which his Honor, Judge Whaley, passed an order overruling the demurrer for the reasons stated therein, which order will be reported; from which the defendant has appealed.
It is apparent that the writing claimed to have constituted a libel does not present a case of libel per se, but the allegations of the complaint seek to establish its libelous character by what is technically called the innuendo, in a complaint for libel — a practical admission that the writing is not libelousper se, but becomes so by reason of the natural inferences that might be drawn from it, and which were intended to be drawn from it, and which were intended to be drawn, reflecting upon the plaintiff.
We do not apprehend that there would or could be reasonable ground to question the proposition that if the writing had directly charged the plaintiff with issuing a check upon a bank in which he did not at the time have on deposit a sufficient credit to meet the check, the writing would be libelous, as reflecting upon the personal integrity of the plaintiff or of his business capacity and methods, and as subjecting him to a criminal prosecution. Where, however, the charge is not directly made in the writing, the question for decision is thus stated in Newell on Libel and Slander (4th Ed.), 736:
"If, however, the words are capable (susceptible?) of the meaning described to them by the innuendo and there is any evidence to go to the jury that they were used with that meaning, then it will be for the jury to decide whether in fact the words were understood in that sense by those who first heard or read them."
That the notice, taken in connection with the attending circumstances, was susceptible of the meaning attributed to it by the innuendo of the complaint seems to us clear. *385
The notice returning the check, stated that the account of Mrs. Warwick had been charged back with the amount of the plaintiff's check, is an admission on the part of the defendant bank that the item had been entered upon her deposit account as a credit. If so, it was plainly the duty of the bank to present the check to the drawee bank. The depositor, Mrs. Warwick, had the right to assume that the bank had done this. The inference which she naturally would draw was that the check had been presented and dishonored, the action of the bank being practically a charge to that effect.
The judgment of this Court is that the order overruling the demurrer be affirmed.
MESSRS. JUSTICES WATTS, BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.
