Duncan v. the Record Publishing Co.

143 S.E. 31, 145 S.C. 196, 1927 S.C. LEXIS 11

• Court: Supreme Court of South Carolina
• Decided: September 21, 1927
• Docket: 12275
• Status: Published

Opinions

The opinion of the Court was delivered by Mr. Justice Blease.

The appeal in this case was first heard in this Court on the 10th day of November, 1925. At the hearing, the Court consisted of Associate Justices Watts, Cothran, and Marion and Hon. R. O. Purdy, Acting Associate Justice. After the hearing, and prior to the disposition of the cause, Mr. Justice Marion resigned on January 1, 1926, but was appointed and commissioned by his excellency, Hon. Thomas G. McLeod, Governor of the State, to act as an Associate Justice in all causes which had been heard by him and which had not been determined. Mr. Associate Justice Marion wrote an opinion affirming the judgment of the Court below, and Mr. Justice Watts concurred therein. Mr. Justice Cothran wrote an opinion reversing the judgment and ordering the entry of a nonsuit, as provided by Rule 27. With that opinion, Mr. Acting Associate Justice Purdy concurred. The opinions were not filed. If they had been filed, the result would have been an affirmance of the judgment below, since the Court was equally divided; two of the Justices favoring affirmance, and two favoring reversal. Hutchinson v. Turner, 88 S. C., 318; 70 S. E., 410, 806. Owings v. Graham, 120 S. C., 408; 113 S. E., 279. Thereafter the Justices who participated in the hearing of the appeal ordered a reargument of the cause to be had at the June, 1927, term of the Court; the opinions mentioned before being lodged with the Clerk of Court for the information of counsel and not as the judgment of the Court. See Owings v. Graham, supra. Pursuant to the order of rehearing, the appeal was reargued on June 14, 1927.

We have examined carefully the record in the cause, and the able and interesting opinions of Justices Marion and Cothran. It is our opinion that the opinion of Acting Associate Justice Marion ably and correctly disposes of all the questions raised by the appellants, and that it plainly and properly sets forth all the legal principles applicable to the. facts of the cause. An effort on the part of this Court to attempt to improve upon what he has so well said would be unnecessary and fruitless. We are entirely satisfied with and adopt his opinion as the opinion of this Court. That opinion was as follows:

Mr. Acting Associate Justice Marion: This is an action for libel, brought by the plaintiff, T. C. Duncan, against the Record Publishing Company and E. W. Robertson. The plaintiff recovered, and from judgment on verdict the two defendants have appealed upon exceptions, which assign error in the refusal of defendants’ motions for non-suit, for a directed verdict, and for a new trial, and in the charge to the jury. The exceptions, together with the Circuit Judge’s charge, should be set out in the report of the case.

The material facts out of which the action arose are as follows:

The plaintiff, Duncan, was a member of the State Senate. On March 23, 1923, he was appointed a member of a commission of seven known as the Canal Commission, created by an Act of the General Assembly, 'approved March 26, 1923 (33 St. at Targe, p. 828). This commission was vested “with full and exclusive power and authority to take full control of the interest of the State, * * * in the Columbia Canal property, * * * in the cause entitled ‘The State-of South Carolina v. Columbia Railway, Gas and Electric Co.’ ” then pending in the Courts. The defendant Robertson was an officer of and the owner of a controlling interest in the stock of the Columbia Railway, Gas & Electric Company, hereinafter referred to as the Street Railway Company, and was also president of a bank.

On March 28th, two days after the approval of the Act creating the Canal Commission, and five days after his appointment on the commission, the plaintiff, Duncan, addressed a letter to the defendant Robertson, making application for a loan of $25,000, which application was refused. During the year following the refusal of this loan the Canal Commission held a number of meetings, and had before it offers of settlement of the canal litigation submitted by the Street Railwa3f Company and by Stone & Webster, who had obtained from the defendant Robertson an option on the controlling stock in the Street Railway Company. These offers had been published in the newspapers, publicly discussed, and a settlement advocated by the Chambers of Commerce of Columbia and of Winnsboro, and by the signers of a petition bearing more than 1,000 names, which had been presented to the Canal Commission. The offers, of the Street Railway Company had been rejected, but no decision as to the proposal of Stone & Webster had been made public, when on the morning of March 11, 1924,'the plaintiff, Duncan, arose from his seat in the Senate “to a point of personal and official privilege” and delivered a speech on the “canal situation,” in the course of which he charged that this situation had been handled by the press of Columbia in a manner to put out “the most appalling propaganda ever put out in South Carolina”; that Stone & Webster, “aided and abetted by the powerful newspapers of Columbia,” had come into the situation as a “Trojan horse” for “the Columbia concern ”; that the Street Railway Company was a company that had “feasted on its betters, by taking advantage of the financial situation,” etc. The address contained references to “the gentleman who sits in the offices in the back of the Loan & Exchange Bank” and to a “Columbia octopus,” and proclaimed the speaker’s intention “to make the men who have been feeding on dead men’s bones take their medicine.”

On the day the foregoing address was delivered by the plaintiff, Duncan, the Columbia Record, an afternoon newspaper, published on the front page the following:

“Facsimile of a Letter from Senator T. C. Duncan to Edwin W. Robertson, of Columbia

“Senator Duncan is a member of the Canal Commission. He was appointed a member of the commission on March 23, 1923. The Act creating the commission was passed by the General Assembly during the session of 1923, and was approved March 26, 1923. Senator Duncan’s letter is dated March 28,- 1923. The loan solicited was not granted. The first meeting of the Canal Commission was held in Columbia, April 13, 1923.

“Union, Mar. 28 6 P. M. S. C.

“After five days return to T. C. Duncan, Union, S. C. To Mr. E. W. Robertson, % Loan & Exchange Nat. Bank, Columbia, S. C.

“Personal.

“T. C. Duncan, Union, S. C. To E. W. Robertson, Columbia, S. C. March 28, 1923.

' “Dear Sir: I would like to secure a loan of $25,000.00— for three years — interest payable semiannually. I have security, worth six times the amount of loan desired.

“I will be glad for you to have your representative to inspect the property that I would offer as collateral — I can make loan from a bank, but I do not desire the constant renewal of paper. I have Building & Loan stock that will mature in three years, by means of which loan will be paid at maturity.

“If there is any one in the State who could handle the above matter, you are the individual — I would thank you for your early reply.

“Very truly, [Signed] T. C. Duncan.”

This action for libel is based upon the foregoing publication. Plaintiff alleged that “in and by the publication hereinabove set forth, and the circumstances attending and surrounding the same, the defendants purposed and intended to charge' and to convey to the public the charge that this plaintiff was susceptible to- bribery; that he was by said letter inviting the defendant E. W. Robertson to approach and influence him in the discharge of his duties on said Canal Commission in a corrupt way; that plaintiff wás dishonest and corrupt in the discharge of his public and official trusts and duties; that he was betraying the interests of the public and of the State in his official position; that plaintiff’s integrity was impeached, and that he was unworthy of the confidence of the public and of the business world.” The defendant, Robertson, by his answer, admitted the pubication, but denied the innuendoes alleged, and pleaded, by way of self-defense and privilege, that he made the publication to defend ■ himself against plaintiff’s defamatory attacks and that the publication made was true. The answer of the Record Publishing Company presented substantially the same defenses. The appellants’ first general proposition is that the facts alleged and proved, when subjected to the correct legal test or tests applicable, do not make out a case of actionable defamation. To that contention, according to appellants’ grouping, Exceptions 1, 4, 5, and 6 are directed, and the contention itself is broadly presented-by Exception 1, which imputes error to the trial Court in refusing defendants’ motion for nonsuit and for a directed verdict, upon the ground that plaintiff had “failed to prove that the publication alleged was libelous per se or by reason of special circumstances surrounding the publication,” and had, “therefore, failed to- prove a cause of action for defamation” against defendants. ,

In support of that position it is argued that the publication itself contained “no defamatory statement or implication, suggestion, or insinuation”; that the publication itself fully disclosed the situation and occasion and contained all the relevant facts, and that no extraneous facts and circumstances (inducement), which coupled with the language used would affect the construction and render it actionable, had been alleged or proved; that construing the words published, as they must be construed, in their ordinary and popular meaning, in the light of the occasion and all of the relevant circumstances disclosed by the publication itself, the publication was not reasonably susceptible of the defamatory meaning attributed thereto by the innuendo of plaintiff’s complaint ; and that it was, therefore, within the province of the Court to determine as a matter of law that the publication was not actionable as a libel and the duty of the Court to hold that the defendants were entitled to a nonsuit or directed verdict. The publication, as we have seen, consisted of a facsimile of Duncan’s letter to Robertson, soliciting a loan, the statement that Duncan was a member of the Canal Commission, the date of his appointment, the date of the approval of the Act creating the Canal Commission, the date of Duncan’s letter, the date and place of the first meeting of the Canal Commission, and the statement that the loan solicited by Duncan was not granted.

In the view that the publication itself disclosed the occasion and contained all the facts relevant to the matter published, the validity of 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. 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 Railway, 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. Certainly, when the matter contained in the publication is read in the light of the foregoing significant facts, it would seem scarecly open to argument that the publication was reasonably susceptible of the meaning which the innuendo of the complaint ascribed thereto, 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. For the Court to have held otherwise would, we think, have required the indulgence of a presumption for which unfortunately there is no basis in the common experience of mankind — that the average reader of the modern newspaper lives and thinks in the rarified atmosphere of “the pure, to whom all things are pure.”

It is further contended that there was neither allegation nor proof that the publication effected a libelous purpose “by conveying to those to whom it was sent” the defamatory meaning charged (Hubbard v. Furman University, 76 S. C., 514; 57 S. E., 479), and that in the absence of such allegation and proof the cause of action for libel was not established. No demurrer was interposed upon the ground that the allegations of the complaint were insuffi cient, and the testimony of readers of the publication, offered by plaintiff to establish that it was understood in the defamatory sense charged, was excluded by the Court upon defendants’ objection. The Court excluded the testimony offered upon the ground that the cpiestion was one for the jury, “because they could tell what impression the writing conveyed as well as any individual could.” If, as we have'held, the writing as published was capable of conveying the defamatory meaning charged, the evidence adduced to establish its publication and the circumstantial setting thereof was, we think, sufficient to support the inference of fact that such defamatory meaning was actually conveyed to the readers of the publication. The motions for nonsuit and for a directed verdict could not, therefore, have been properly granted upon the ground of failure to allege and prove that a libelous purpose was effected.

It is virtually conceded by appellants that the foregoing conclusions are required, if the Circuit Judge’s view of the law, as embodied in the portions of his charge to which Exception 4 is directed, is correct. Exception 4 imputes error to the Circuit Judge in charging as follows:

“Where the words written and published of another are capable of two meanings, one of which is slanderous and the other is not, it is the duty of the jury to ascertain from the evidence, by the greater weight thereof, taking into consideration all the facts and surrounding circumstances attend- ■ ing the uttering of the publication, in what sense the words were uttered or published. In ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers, the jury are entitled to take into consi deration both the ordinary meaning of the words, the time, place, setting, and surrounding circumstances attending and accompanying the publication thereof, including also the official position and duties of the party about whom the publication was made at that time, as they may find the same to be from the evidence by the greater weight thereof, and ascertain and determine from all of the evidence what meaning should be given to the publication. It is for the jury to determine from the evidence, by the greater weight thereof, the sense in which words were published.”

The objections urged to the foregoing instruction are, in substance, that it erroneously makes the defendants’ “secret intention” and “the sense in which the words were published” the test by which to determine the question of libel or no libel, and authorizes the jury “to take into consideration the time, place, setting, and surrounding circumstances” without regard to whether “these were known to and appreciated by the readers” of the publication. We think the objections are hypercritical. The charge was in accord with the law as thus stated in Newell on Libel and Slander (4th Ed.), pp. 736, 737, § 672:

“Wherever the words sued on are susceptible both of a harmless and an injurious meaning, it will be a question for the jury to decide which meaning was in fact conveyed to the hearers or readers at the time of the publication. * * * The plaintiff may give evidence of surrounding circumstances from which a defamatory meaning can be inferred. * * * If, however, the words are capable of the meaning ascribed 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 statement is in substantial accord with the. law as stated and applied by this Court in several cases (Hubbard v. Furman University, 76 S. C., 510; 57 S. E., 478. Black v. State Co., 93 S. C., 475, 476; 77 S. E., 51; Ann. Cas., 1914-C, 989. Nunnamaker v. Smith’s, 96 S. C., 294; 80 S. E., 465), and with the views expressed and applied by the Supreme Court of the United States in Baker v. Warner, 231 U. S., 594; 34 S. Ct., 175; 58 L. Ed., 389, and in Washington Post Co. v. Chaloner, 250 U. S., 293; 39 St. Ct., 448; 63 L. Ed., 989.

It is true that, if the extraneous circumstances relied upon to give a defamatory meaning to a publication were unknown to the readers of the publication, such circumstances could, of course, have no probative force to establish that the published writing conveyed a libelous meaning to such readers. But in correctly charging generally that the jury were entitled to take the surrounding and attendant circumstances into consideration, “in ascertaining the sense in which the words were published and the meaning intended to be conveyed and conveyed to readers,” the Court was not bound to assume that evidence, if any, as to attendant circumstances which were unknown to the readers of the publication, would be given a probative force to which it was not entitled. And even if it be conceded that the general principle embodied in the charge as given might properly have been qualified by an instruction to the effect that in determining whether the publication conveyed a libelous meaning only attendant circumstances which were known to the readers of the publication could be considered (25 Cyc., 357; 17 R. C. L., 314, § 54), in the absence of a specific request for such an instruction, the Court’s failure so to charge cannot be held for reversible error. Mrs. Hall’s Cafeteria v. Insurance Co., 128 S. C., 214; 122 S. E., 580. Strickland v. Moskos, 131 S. C., 249; 127 S. E., 265. Langley v. So. Ry., 113 S. C., 54; 101 S. E., 286.

It is further contended that the Circuit Judge erred (Exception 5) in charging as follows:

“To constitute an actionable libel, the writing must make a false charge or insinuation against the plaintiff; it must be inspired by malice; it must tend to impeach the reputation of the plaintiff, and to injure him in his office, business, or in the estimation of the public. To render a defamatory, statement actionable, it is not necessary that the false charge be made in a direct, open, and positive manner. A mere insinuation is as actionable as a positive assertion, if it is false and malicious, and the meaning is plain.”

The charge was a correct statement of the law, 17 R. C. L., pp. 312-314, §§ 53-55. Turner v. Brien, 184 Iowa, 320; 167 N. W., 584; 3 A. L. R., 1589, 1590. Appellants do not contend to the contrary, but say that it was inapplicable, in that the evidence was not reasonably susceptible of an inference that defendants had made any defamatory insinuation concerning the plaintiff, and that the foregoing charge was tantamount to an instruction that the jury could find in defendants’ publication insinuations for which they “would be legally liable.” That contention is essentially the same as is embodied in the defendants’ request to charge, the refusal of which is made the basis of Exception 6, which request was as follows :

“The publication alleged in the complaint in this action was a letter written by the plaintiff to defendant Robertson, and if you find by the preponderance of the testimony that the circumstances stated in connection with the receipt of the letter are correctly stated, and that no comment was made thereon, you cannot find from the publication itself that the defendants were actuated by the motives alleged in the complaint, or that they intended to give to the publication the meaning alleged in the complaint. There must be some other evidence to establish the truth of the allegation of such meaning and motive.”

If, as we have held in disposing of Exceptions 1 and 4, the issue, as to whether the publication, in the light of the extrinsic facts established, bore and conveyed the defamatory meaning charged, was properly submitted to the jury as an issue of fact, it is apparent that appellants’ position as to the errors assigned by Exceptions 5 and 6 is untenable. Upon that issue the charge given (Exception 5) was sound and clearly applicable, and the request to charge refused (Excep tion 6) was properly refused as involving an invasion of the jury’s province.

The second general proposition advanced by appellants is that the publication alleged to be libelous “was absolutely true” and that its “literal truthfulness” was a complete defense, “irrespective of the occasion of the publication or the motive or purpose of the publisher.” Under this general proposition appellants group their Exceptions 2, 7, 8, and 9.

Exception 2 makes the contention that the Circuit Judge “should have granted a nonsuit and directed a verdict,” upon the ground that “the testimony admits only of the inference that the publication by defendant was absolutely true, so that plaintiff has failed to establish any cause of action for defam-. ation, as alleged.” Exception 7 imputes error to the trial Judge in charging as follows :

“If you find that charges or insinuations against this plaintiff, if any, made in the publications made by defendants in this case were true, then your, verdict as to such charges or insinuations found to be true must be for defendants. I charge you this because in a case of this character the truth of the publication, and of any charges or insinuations made therein, is a complete defense. And, even though evil motives may have prompted defendants to publish the truth, this will not make them liable. And it makes no difference whether either or both of the defendants did not know, at the time that the publication or charges were made, that they were the truth.”

The specifications of error are (a) “that the publication made no charges nor insinuations against plaintiff, and there was no evidence of any charges or insinuations made by defendants aliunde,” and (b) “that proof of the literal truthfulness of a publication is a complete defense, regardless of any insinuation sought to be placed thereon by innuendoes alleged or otherwise,” etc. That the publication was “absolutely true,” in 'the sense that each and every statement therein contained was literally true, we do not understand to be disputed. But it does not follow that such literal truth was a complete defense, as appellants contended. The plaintiff’s cause of action for libel was predicated upon the charge that the publication, literally true as it was, was intended to convey and conveyed to the readers thereof the defamatory meaning attributed thereto by the innuendo of the complaint. The trial Court having properly held as a matter of law that the publication was capable of the construction placed upon it by the plaintiff, and the issue of fact as to whether the statement was published and understood in the sense charged having been properly submitted to the jury, it was necessary that the truth of the publication, pleaded by way of justification, in order to constitute a complete defense, should be established in the sense that the publication was alleged to convey a defamatory meaning. 36 C. J., p. 1233, § 194, and the numerous cases cited in footnote 29. Turner v. Brien, 184 Iowa, 320; 167 N. W., 584; 3 A. L. R., 1590. Snyder v. Tribune Co., 161 Iowa, 671; 143 N. W., 519. Julian v. Kansas City Star Co., 209 Mo., 35; 107 S. W., 496. The rule is thus stated in Newell on Dibel and Slander (4th Ed.), p. 766, § 699:

“A plea is bad which falls short of a justification of the slanderous words in the sense imputed to them by the declaration, for the plea necessarily confesses that such sense is correctly imputed. * * * The whole libel must be proved true, not a part merely. * * * Justification must be of the very charge it is attempted to justify, and it is not permissible to set up a charge of the same general nature, but distinct as to the particular subject.”

The author of the note to Hutchins v. Page, 31 L. R. A. (N. S.), at page 140, states the law as follows:

“In order that the truth constitute a complete defense, it must be established in the sense in which it is charged. As said by Lord Chief Justice De Gray in R. v. Horne, Cowp., pt. 2, p. 687, a man cannot defame -in one sense, and defend himself in another. Hence the sufficiency of evidence to justify a defamatory matter depends upon Jthe question whether the facts are charged with an innuendo, since if this is the case, according to the weight of authority, it is necessary to allege and prove the truth of the charge according to the imputation of the innuendo, or the defendant will fail in his attempt to justify, assuming, of - course, that the words are capable pf the meaning imputed to them, and that the defendant seeks to justify according to that meaning. Jones v. Townsend, 21 Fla., 431; 58 Am. Rep., 676. Stowell v. Beagle, 57 Ill., 97; s. c. on subsequent appeal, 79 Ill., 525. Downey v. Dillon, 52 Ind., 442. Samples v. Carnahan, 21 (Ind.) Ill. App., 55 (51 N. E., 425). McGuire v. Vaughan, 106 Mich., 280; 64 N. W., 44. Fidler v. (Dela van) Delevan, 20 Wend. (N. Y.), 57. Wahle v. Cincinnati Gazette Co., 4 Ohio L. J. (Wkly. Law Bul.), 61. Gage v. Robertson, 12 Ohio, 250. Nott v. Stoddard, 38 Vt., 25; 88 Am. Dec., 633. Royce v. Maloney, 57 Vt., 325.”

Thus, “where the innuendo imputes to the facts a charge involving dishonesty, corrupt or criminal intent, it is necessary, in order to justify the charge, not only to allege the truth of the facts, but also their truth according to the intent imputed to them.” Gage v. Robinson, 12 Ohio, 250; and see Clifton v. Lange, 108 Iowa, 472; 79 N. W., 276. Paxton v. Woodward, 31 Mont., 195; 78 P., 215; 107 Am. St. Rep., 416; 3 Ann. Cas., 546. Since appellants do not contend, but, on the contrary, expressly disclaim, that they sought to justify by showing the truth of the charge which plaintiff’s innuendo imputed to the publication, it is clear that their contention that the “literal truthfulness” of the publication constituted a complete defense is untenable and Exceptions 2 and 7, which are predicated upon the validity of that contention, must be overruled.

The instruction complained of in Exception 8 was to the effect that “the benefit as a defense of the truth of matters published may be lost, if the matter published was a private transaction with which the public had no legit- ■ imate connection or concern, and the manner and style of publication made a false' insinuation against the plaintiff, which would render the matter libelous.” That instruction followed the broad statement that, “where the facts printed and published are true, no liability for libel will arise from the mere fact that the truth stated is liable to suggest damaging inferences concerning such plaintiff, or from the mere fact that from the truth so stated natural inferences of a defamatory character might be drawn which would be untrue” ■ — the purport of which statement was to clarify and emphasize the point, which the trial Judge had previously made in his charge, that “the inference of hurt, or injury, arising out of a statement of facts, in order to become actionable, must be such an inference as is drawn or established by the general consent of men.” Upon analysis it will be perceived that the modification here complained of does not, as appellants suggest in argument, go to the extent of applying the doctrine announced by certain Courts (Hutchins v. Page, 75 N. H., 215; 72 A., 689; 31 L. R. A. [N. S.], 132. Burkhart v. North American Co., 214 Pa., 39; 63 A., 410), that truth is not a defense to a civil action for libel, unless published “upon a lawful occasion, in good faith, and for a proper motive.” The Circuit Judge merely said, in effect, that truth'would not be a defense if the matter published was not privileged and if it “made a false insinuation against the plaintiff which would render the matter libelous” — a proposition which is not open to valid criticism, when considered in the light of the rule that the plea of truth must extend to the defamatory meaning alleged to have been conveyed by the publication and of the Court’s previous instruction to the effect that the truth of the publication, in the sense that it conveyed any such defamatory meaning, “is a complete defense,” “even though evil motives may have prompted” the publication. Exception 8 must therefore be overruled.

In this phase of the case relating to truth as a defense, appellants’ next contention (Exception 9) is that the trial Court erred in charging that, “where a libelous publication consists of making a charge of a crime and a party seeks to justify on the ground that the charge is true, the law of this State requires him to prove the truth of his charge — that is to say, the truth of the crime — beyond a reasonable doubt just as in criminal cases.” The error assigned is not that the foregoing instruction was an incorrect statement of the law (Gill v. Ruggles, 95 S. C., pages 94, 95; 78 S. E., 536. Burckhalter v. Coward, 16 S. C., 440; but see Salley v. Globe Indemnity Co., 133 S. C., 342; 131 S. E., 616; 43 A. L. R., 971), but that defendants “did not justify in this case by seeking to prove the truth of a crime,” but, on the contrary, by their answer “expressly denied the allegations of the complaint” that they “had charged plaintiff with the commission of a crime.” Hence, as- we understand appellants’ point, it is contended that the charge was. irrelevant and misleading. The defendants pleaded the truth of the “facts” published, and the truth of the publication “by way of justification and complete defense” to the action. Upon the issue thus raised, clearly the charge complained of may not be pronounced erroneous upon the ground that it was inapplicable. While the defendants did disclaim any intent to charge plaintiff with the commission of a crime, they did not withdraw or abandon the plea of truth “by way of justification and complete defense” — a plea which, as we have seen, could not be sustained without meeting the facts published in the sense imputed to them by plaintiff’s innuendo. But, in any event, if the charge was directed to an issue which the Court improperly assumed to be made by the pleadings, “it was incumbent on defendants’ counsel to call the Court’s attention to its mistake.” Gill v. Ruggles, 95 S. C., 100; 78 S. E., 540. That was not done, and Exception 9 must be overruled.

Appellants’ third general proposition is that the trial Court misapprehended and erroneously applied to the facts of this case the law of “self-defense and privilege.” Por the purpose of presenting their position upon this question, appellants in argument' have grouped their Exceptions 3, 10, 11, 12, and 13. The main contention made is, in substance, that the Circuit Court erred in holding and in charging that the defense of privilege, based upon the right of self-defense and upon the right to publish and comment upon matters of public interest, interposed by both of the defendants, was not a good defense in bar, but was available and effective “only in mitigation or reduction of damages.” By reference to the Judge’s charge it will be seen that the facts as to the defamatory attack upon the defendant by the plaintiff, Duncan, in the State Senate, on the day of the alleged libelous publication by defendants, upon which the defense of privilege was based, were as fully stated in the charge as pleaded in the defendants’ answers. Those facts were pleaded “as privilege and justification, as well as in mitigation.” The portions of the charge complained of in Exceptions 10, 11, and 12, standing alone, would unquestionably be open to the criticism leveled against them, if such portions of the charge could properly be construed to constitute the whole of the Court’s charge upon the defense of privilege.

Thus, in the instruction referred to in Exception 10, the Court charged that, “if a publication of a libel by a defendant against a senator is provoked by a speech made by the senator in the Senate, such speech by the senator, although made in the Senate, may be taken into consideration by the jury in mitigation or reduction of any damages caused to the senator by the defendants’ publication, if the defendants’ publication was libelous.” In the instruction referred to in Exception 11, the Court charged that “the defense of self-defense and privilege, as I have heretofore set them forth, would apply in this case in mitigation or reduction of dam ages, if the publication by defendants was libelous, even though plaintiff’s (defendants’) publication resulted from a speech made by plaintiff during a session of the Senate, of which he was a member, and in the Senate chamber”; and, in the instruction complained of in Exception 12, the Court charged that “if the defendants, by the publication in evidence, charged the plaintiff with having solicited a bribe, while a public officer, to influence his official conduct, then the charge and publication would be libelous, and the burden would then be upon defendants to defeat liability by proving the truth of the charge, or. to prove any facts or circumstances, which under the law as stated by me in this charge would mitigate or reduce any amount of damages recoverable by plaintiff.”

We think, however, that a fair consideration of the charge as a whole, consecutively read, clearly discloses that in the portions of the charge excepted to the trial Judge was endeavoring to give the defendants the full benefit of the proposition of law advanced by them in their sixth request — that the plaintiff’s senatorial privilege “did not deprive defendants of their right to defend themselves or of their privilege to answer his attack” — and to cover the contention made in the answer that the facts upon which defendants based their claim of privilege were to be considered not only in the aspect of justification or as a compete defense, but in mitigation of damages as well. See Section 426, Vol. I, Code 1922. The portion of the charge referred to in Exception 10 was followed, and that referred to in Exception 11 was preceded, by the following:

“In an honest endeavor to vindicate himself and his own interests, a defendant is often privileged to make statements which would otherwise be regarded as defamatory. If a party’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, á publication which is fairly in answer to a libel, if published, without malice and in good faith, for the purpose of repelling a charge, is privilegedand is not actionable.

“An action for libel is not to be encouraged for publication made while parties are mutually engaged in making publications about each other. A publication made in the course of a newspaper war, and bearing some reasonable relation' to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you find that the defendants were actuated by express or áctual malice in making the publication, and have abused their privilege.”

After giving the instruction referred to in Exceptions 10, 11, and 12, the Court charged:

“It is a legal defense to an action for libel if it is shown that the publication was true, or if the circumstances .under which the publication was made were such as to render it right and proper that the defendant should make the publication in question. In such cases, the publication is said to be privileged; and, if privileged, although it may be false, still its publication on such an occasion is excused for the sake of the common convenience and welfare of society at large.” (Italics added.)

And subsequently the Court charged:

“If from a defendant’s point of view strong words seem to. be justified, he should not be held liable for using them, unless the jury find from the evidence that what he published was malicious and inconsistent with good faith.” (Italics added.)

In view of the foregoing instructions it cannot be said that the trial Court limited the scope and sufficiency of the defense of “self-defense and privilege” to mitigation of damages. Under the well-settled general principles that the charge must be considered as a whole, that the refusal of an instruction covered by others given is not error, and that' it is not improper to state the law as applicable to particular questions in separate instructions which are consistent with each other, the portions of the charge complained of in Exceptions. 10, 11, and 12 cannot be pronounced erroneous. 38 Cyc., 1598. Union Bleaching & Finishing Co. v. Barker Fuel Co., 124 S. C., 458; 117 S. E., 735. Sanders v. Hayes, 128 S. C., 181; 122 S. E., 572.

It is further contended that this defense of privilege, interposed by both defendants, was so conclusively established by the evidence that the trial Judge should have charged, “under the circumstances in this case, that the publication made by defendants was qualifiedly privileged” (Exception 13) and should have directed a verdict for defendants upon that ground (Exception 3). In his able dissenting opinion in the case Switzer v. Am. Ry. Express Co., 119 S. C., 242, 248; 112 S. E., 110, 113 (26 A. L. R., 819), Mr. Justice Cothran thus states the questions of fact involved in determining the issue as to whether a communication or publication is qualifiedly privileged:

“Was the ‘communication,’ alleged to have been slanderous, one of qualified privilege; this question depending upon the further question whether or not, the ‘occasion’ being shown to have been one of qualified privilege, the occasion was so abused, or its bounds so exceeded by ill motive, as to deprive the communication of the qualifiedly privileged character which is presumed by the fact of its utterance upon a qualifiedly privileged occasion?”

In Newell on Eibel and Slander (4th Ed.), pp. 315, 316, § 277, it is said:

“The effect, therefore, of showing that the communication was made upon a privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact; that is, that the defendant was actuated by ill will in what he did and said, with a design to causelessly or wantonly injure the plaintiff; and this malice in fact, resting as it must upon the libelous matter itself and the surrounding circumstances tending to prove fact and notice, is a question to be determined by the jury. The question whether the occasion is such as to rebut the inference of malice, if the communication be bona fide, is one of law for the Court; but whether bona fides exist is one of fact for the jury. And the jury may find the existence of actual malice from the language of the communication itself, as well as from extrinsic evidence.”

In the case of Switzer v. American Ry. Express Co., 119 S. C., 242, 243; 112 S. E., 111; 26 A. L. R., 819, this Court said:

“While, as stated by Judge Earle in the case of Smith v. Youmans, supra (3 Hill, 85), the privileged 'occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof,’ the presumption thus raised is a presumption or inference of fact sanctioned by law, to be applied by the jury under appropriate instructions of the Court.”

It is true, where the evidence is open to no other reasonable inference of fact than that the occasion, in the absence of actual malice, was privileged, the Court might properly so instruct the jury, leaving to the jury only the question of whether the plaintiff had sustained the burden of showing the existence of actual malice. Or, as pointed out in the majority opinion in the Switzer case, where the evidence is susceptible of no other reasonable inference than that (1) the occasion was privileged, and (2) that the occasion was not employed in bad faith and with actual malice, for the purpose of making a defamatory communication, it would be the duty of the Court to hold that the defense of qualified privilege was established and to grant a nonsuit or to direct a verdict for the defendant.

In the case at bar the Court modified defendants’ fifth request which contained the language, “A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and I charge you that under the circumstances in this case that the publication made by defendants was qualifiedly privileged, and that you cannot award the plaintiff a verdict, unless you find that the defendants have abused their privilege,” by charging as follows:

“A publication made in the course of a newspaper war, and bearing some reasonable relation to the subject-matter of the controversy, is qualifiedly privileged, and it is for you to determine from the evidence, applying to the evidence the rules of law stated by me, whether or not, under the circumstances of this case, the publication made by defendants was qualifiedly privileged, and, if it was privileged, then you cannot award the plaintiff a verdict, unless you can find that the defendants were actuated by express or actual malice in making the publication, and have abused their privilege.”

In the light of the principle enunciated by the foregoing authorities, we do not think the failure to charge, as requested, “that the publication made by defendants was qualifiedly privileged,” may be held for reversible error, even in the possible view that under the facts of the case the Court might properly have held and charged that the occasion was privileged. And since the only effect of holding by the Court that the occasion was privileged would have been to require the placing on plaintiff of the burden of showing “express or actual malice” — a burden which, in effect, was as clearly devolved on plaintiff by this instruction as modified and by the general charge as if the Court had expressly assumed and held that the occasion was privileged — we are of the opinion that the point raised by Exception 13 is without substantial merit and must be overruled. And unless the Court co.uld have held as a matter of law that the facts in evidence were susceptible of no other reasonable inference than that the publication was made without actual malice — • and it is not seriously contended in argument that under the facts here the trial Court could properly have so held — it follows that there was no error in refusing the motion for ■nonsuit and for a directed verdict, upon the ground that the defense of privilege had been conclusively established by the evidence, and Exception 3 must therefore be overruled. See Switzer v. American Ry. Express Co., supra. Smith v. Youmans, 3 Hill, 88, 89. Miller v. Kerr, 2 McCord, 288; 13 Am. Dec., 722; Newell on Libel and Slander, pp. 315, 316, § 277. Denver Pub. W. Co. v. Holloway, 34 Colo., 432; 83 P., 131; 3 L. R. A. (N. S.), 699; 114 Am. St. Rep., 171; 7 Ann. Cas., 840; and editorial notes and cases cited and reviewed, 3 L. R. A. (N. S.), 697, and Sunley v. M. L. Ins. Co., 132 Iowa, 123; 109 N. W., 463; 12 L. R. A. (N. S.), 93.

Appellants’ fourth general proposition is that the trial Judge erred in charging the law of damages. It is contended (Exception 14) that the Court erred in charging as follows:

“If the jury find from the evidence, by the greater weight thereof, that the publication in question was libelous, then the plaintiff wduld be entitled to recover such sum by way of actual damages as the jury in its discretion may think, proper to compensate him for his injury, including the humiliation which he may feel and may have suffered by reason of the publication, and the jury are instructed that, if -they find the publication was libelous, the plaintiff would be entitled to substantial damages.”

The error assigned is (a) that the charge was in respect of matters of fact, and so violated Section 26 of Article 5 of the Constitution; (b) that the amount of damages was in the sound discretion of the jury, etc.; and (c) that the charge was peculiarly prejudicial, “in view of plaintiff’s failure to offer testimony of any actual damage,” and “in view of de fendants’ testimony going to mitigation and reduction of damages.” It is further contended (Exception IS) that the Judge, in violation of the constitutional inhibition, intimated to the jury his opinion that plaintiff’s actual damages should be increased, and not diminished, and that plaintiff should be awarded punitive damages, by charging as follows:

“If you find that the defendants, or either of them, have been proven guilty of publishing a libel, as defined in this charge, against the plaintiff, then, in determining the amount of damages to which the plaintiff may be entitled, you should take into consideration all the facts and circumstances of the case as disclosed by the evidence, the nature and character of the charges, the language, manner, and style in which such charges were made or published, and their tendency, the occasion on which they were published, the extent of their circulation, the probable effect of the publication upon those to whose attention it came, and its natural and probable effect upon the plaintiff’s personal feelings, and his standing in the community and in public estimation; and you may, in reaching your verdict, take into consideration, in mitigation or reduction of damages, any and all facts and circumstances disclosed by the evidence which tend to show that the article was published under the influence of a provocation therefor recently given by plaintiff to the defendants or either of them; and if, under the instructions in this charge, the plaintiff is entitled to recover, you should award him such sum by way of damages as will fairly and adequately compensate him for any insult to him, including any pain and mortification and mental suffering inflicted upon him, and any injury to his standing as a man, citizen, or public officer in the public estimation; and the plaintiff would also be entitled to recover such punitive or exemplary damages as you may find to be proper under all such facts and circumstances as may be proven by the evidence, in case you find from the evidence that such defamatory publication or libel was wantonly or maliciously published with intent to injure the plaintiff.”

Reading the foregoing portions of the charge, referred to in Exceptions 14 and 15, together, it is sufficiently apparent, we think, that the applicable law as to damages was fully and fairly charged, and that the instructions are not open to valid criticism, unless it can be said that the Judge trenched upon the facts in stating that, if the jury should “find the publication was libelous, the plaintiff would be entitled to substantial damages.” In their printed argument, that is the gist of the objection urged by appellants to the Court’s charge upon this phase of the case.

It is argued that since, under the well-established rule in actions for libel, “the amount of damages is peculiarly within the province of the jury” (17 R. C. D., 429, § 188. Gambrill v. Scholey, 93 Md., 48; 48 A., 730; 52 L. R. A., 87; 86 Am. St. Rep., 414; note 86 Am. St. Rep., 422. Holmes v. Jones, 147 N. Y., 59; 41 N. E., 409; 49 Am. St. Rep., 646), the instruction to the effect that upon the basis of a finding by the jury that the publication was libelous “plaintiff would be entitled to substantial damages” was an improper expression of opinion by the Court as to a question of fact which was exclusivély for the jury. It is to be borne in mind that the sense in which the publication was alleged by plaintiff to be libelous was that it conveyed a charge of corruption and crime. The Judge’s definitions of libel had been directed to the issue thus raised by the pleadings. Hence a finding by the jury that the publication was libelous would be equivalent to a finding that the publication had falsely and maliciously charged plaintiff with the commission of a crime.

Since “any.printed or written statement which falsely and maliciously charges another with the commission of a crime is libelous per se” (17 R. C. L., 265, § 5. Smith v. Bradstreet, 63 S. C., 530; 41 S. E., 763), and since, from the publication of defamatory matter which is libelous per se, general damages are presumed to result “by inference of law” and “are not required to be proved by evidence” (37 C. J., 91, § 516; see Lorick v. Bank, 74 S. C., 185; 54 S. E., 206; 7 Ann. Cas., 818), it is apparent that the words “substantial damages” were here used by the Circuit Judge, as they were used in Wilson v. Palmetto National Bank, 113 S. C., 508, 512; 101 S. E., 841, in contradistinction to “nominal damages.” The question, therefore, is whether, upon the assumption that the jury found that plaintiff had been falsely and maliciously charged with the commission of a crime, the Court could properly charge that he would be entitled to recover “substantial” damages. In the case of Lorick v. Bank, supra, in a concurring opinion, Mr. Justice Woods said:

“The liability of a bank to its depositor for substantial damages, temperate in amount, for refusing to pay his check, not exceeding his credit, is generally, if not universally, recognized. And it is not necessary to recovery that there should be proof of special damages, the law presuming that the result is injury to the credit of the depositor from the general experience of men in such transactions. It is the application of the rule established in cases of slander, the refusal to pay the check being a declaration against the solvency and correct business dealing of the drawer.”

In Wilson v. Bank, supra, which, like the Lorick case, was an action for damages for improper refusal to honor a check, the Court (Mr. Justice Hydrick) said:

“The next assignment of error is in charging the jury that the damages awarded in a case like this should be something more than nominal; that they should be substantial, but temperate in amount. The error complained of is in the use of the word ‘substantial’. It appears that ‘substantial’ was used in contradistinction to ‘nominal’; that is, damages which are so small as scarcely to be entitled to the name, and such as are given for a mere technical invasion of a right, when no real or actual loss or injury has resulted. The authorities agree, and this Court has held, that, in a case like this, plaintiff is entitled to something more than nominal damages, but that the recovery should be temperate in amount.”

In Lee v. McCrory Stores Corporation, 117 S. C., 236, 238; 109 S. E., 111, which was an action for slander, in passing on an exception which charged that “the presiding Judge invaded the province of the jury in instructing them that they must find general damages substantial in amount, if they found that defendant’s employee had used the language set forth in the complaint,” this Court said:

“The case of Wilson v. Palmetto National Bank, 113 S. C., 508; 101 S. E., 841, is full authority for the charge as made. The charges made the same distinction as to substantial and nominal damages in both cases. This is a stronger case than the Wilson case, in that an overdraft may be the result of carelessness. Stealing cannot be the result of a mistake. This exception is overruled.”

In the light of the foregoing expression of this Court, we do not think the use by the' trial Judge of the words “substantial damages” can soundly be held for reversible error. Conceding that under our practice the use of the word “substantial” in a charge of this character is not to be commended, and that the idea to be conveyed could more accurately and safely be expressed by the words “more than nominal damages,” where, as here, it appears that the word “substantial” was used in that sense, if defendants desired a fuller and more precise statement, an appropriate request for such an instruction should have been preferred. Mrs. Hall’s Cafeteria v. Insurance Co., 128 S. C., 214; 122 S. E., 580. Nor do we think there is merit in appellants’ further contention in this connection that the charge as given eliminated consideration of the defense of self-defense and privilege and of the strong evidence offered by defendants in mitigation. The instruction was based upon the hypothetical finding that defendants had published a libel as charged, and was followed by instructions which very clearly authorized the jury to “take into consideration, in mitiga tion or reduction of damages, any and all facts and circumstances which tend to show that the article was published under the influence of a provocation therefor recently given,” etc.

But appellants say that in charging as to the facts and circumstances in mitigation the Judge used the permissory “may,” while in charging as to the facts and circumstances which the jury might take into consideration in determining the amount of damages he used the mandatory “should” (Exception 15), and thereby unfairly discriminated against the defendants. We think an objection predicated on this refinement in the use of words is manifestly hypercritical, and rests upon too tenuous a basis to warrant a finding of reversible error. Exceptions 14 and 15 must therefore be overruled.

Appellants’ fifth general proposition is that the Circuit Judge committed reversible error in refusing defendants’ motions for a new trial upon the ground that the verdict was “capricious and the result of prejudice” (Exception 16) and “was grossly excessive” (Exception 17). It is contended that the action of the jury in awarding a verdict for the full amount asked for within a few minutes after the case had been submitted strongly indicates that it was the result of caprice and prejudice, and that the jury took no account of defendants’ pleas in justification and mitigation of damages, and that the amount of the verdict is so “excessive as to impel the inference” as a matter of law that it was “the result of caprice, passion and prejudice, or other considerations not founded in the evidence” (Exception 18).

It is well settled that this Court, confined by constitutional limitation to the correction of errors of law in cases of this character, has no power to review and reverse the ruling of the Circuit Judge refusing to grant a new trial upon the ground that a verdict was excessive, unless the appeal record discloses and warrants the conclusion, as a matter of law, “that the Circuit Judge’s refusal to grant a new trial amounted to manifest abuse of the discretionary power exclusively vested in him by law to grant new trial for or on account of matters of fact. Southerland v. Davis, 122 S. C., 511, 515; 115 S. E., 768. Huggins v. Railroad Co., 96 S. C., 267, 278; 79 S. E., 406. Bing v. Railroad Co., 86 S. C., 530; 68 S. E., 645. Or, as was said by this Court in Union Bleaching Co. v. Barker, 124 S. C., 458; 117 S. E., 735:

“This Court is without jurisdiction to review a judgment upon the ground alone that the verdict upon which it is based is excessive or contrary to the evidence. If upon a motion for a new trial it should be made to appear, as a matter of law, an inference from admitted facts, or of facts admitted for the purpose of the motion, that the verdict is excessive, this Court may review a contrary ruling by the trial Court.”

In numerous decisions this Court has said that, in order to authorize the review and correction of a judgment upon this ground, “it should appear that the verdict is so excessive as to warrant an inference that it was the result of caprice, or some improper or corrupt motive.” Leppard v. W. U. Telegraph Co., 88 S. C., 388; 70 S. E., 1004, and other cases cited in Strickland v. Moskos, 131 S. C., 247; 127 S. E., 265. But, obviously, before an inference can be drawn as a matter of law that a verdict was excessive or that it was so excessive as to reveal caprice, prejudice, or passion, the facts must be “admitted,” as pointed out in Union Bleaching Co. v. Barker, supra, or, if not admitted, it must be assumed, in so far as the evidence warrants, that the facts are as found by the jury. In the case at bar, since the material facts are not admitted, and the jury has determined all issues of fact in favor of the plaintiff, it must be assumed that the facts are those established by the jury’s verdict; and the only question which this Court is authorized to consider is whether the Circuit Judge committed error of law in not granting a new trial upon the ground that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded on the evidence. In his order refusing the defendants’ motion for a new trial upon the ground that the verdict was excessive, the Circuit Judge thus states his views and conclusions as to the facts:

“There is sufficient evidence to sustain the verdict on both these points (libelous publication and actual malice), and the verdict is not against the preponderance of the evidence. The jury having found that the publication was both libelous and prompted by actual malice toward plaintiff, the mere fact that they found the full amount sued for does not show that they acted under the influence of either passion or prejudice, or that they failed to consider the plea of justification, mitigation, or truth. Whether or not such plea was established by the evidence was for the jury to determine; and, if the alleged provocation was established, it was for the jury to determine the extent of the mitigation to be allowed therefor, under the circumstances proven. It is my duty to determine whether or not the verdict was unjust or excessive under the evidence. * * * There is no exact measure of the damages to be awarded in a civil action for libel. In such a case as this they should include compensation for the injury done che reputation of a Senator, who inherited a good name from a revered bishop, and had been repeatedly honored by the suffrages of those who knew him best— something the value of which was most difficult to be measured. Many who heard, or read, of the libel would remember it, and overlook or forget the vindication. * * * Compensation is not the only element in the verdict. There was evidence to show actual malice on the part of defendants, and the defendant Robertson stated his individual worth was ‘around $300,000,’ and, when asked how much more, replied, ‘That is enough for this case.’ The jury did not think payment of $50,000 excessive punishment for a mali cious libel published by one so able to pay. * * * Upon a fair consideration of the case, I do not consider the verdict either unjust or excessive. I see no evidence to indicate that the verdict was the result of either caprice or prejudice.”

However difficult it may be to understand the mental proceses of jurors in arriving at a verdict, and however widely this Court may differ with the Circuit Judge in the conclusion, reached in the discharge of the duty exclusively imposed upon him by lav/, that the verdict of a jury was not against the preponderance of the evidence, if the facts in this case are assumed to be the facts established by the jury’s verdict — that the plaintiff was the reputable and innocent victim of the defendants’ express malice in publishing, without justification or excuse, a defamatory charge to the effect that he had been guilty of the foul crime of soliciting a bribe, etc., as alleged — then it is manifest, we think, that it may not soundly be held that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other consideration not founded in the evidence. If so, the contention that the Circuit Judge committed error of law in refusing the motion for a new trial upon the ground that the jury’s award of damages was excessive cannot be sustained.

It is further contended, however (Exception 19), that the Circuit Judge’s failure to grant a new trial was due to his misconception of “his power and duty,” in that he held that, “in order to authorize the trial Judge to grant a new trial on account of excessive damages in a libel case, ‘the damages should be outrageous, out of all proportion to the injury, flagrantly extravagant,’ or that it should appear that the jury ‘were not indifferent between the parties.’ ” It is true that in his order refusing the motion for a new trial the Circuit Judge, upon the authority of certain of our decisions, used the expressions quoted to define or- describe what might be considered excessive damages in a libel case. It cannot be held that his use of those expressions was inaccurate; but, if it could, it does not appear that his conclusion upon the motion for new trial was controlled, or in any wise influenced, thereby. The Judge’s conclusion, as we think is clearly indicated by the extracts from his order above set out, was predicated upon the view that under the facts the verdict was neither moderately nor outrageously excessive.

It follows that all exceptions must be overruled, and the judgment of the Circuit Court is affirmed.

It is the judgment of this Court that the judgment of the Court of Common Pleas for Richland County be and the same is hereby affirmed.

Mr. Chiee Justice Watts, and Messrs. Justices Stabler and Carter concur.