Nash v. Sharper Brief of Appellants
Public Court Documents
January 1, 1956

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Brief Collection, LDF Court Filings. Nash v. Sharper Brief of Appellants, 1956. 5c08a509-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f60bf815-6a63-4a17-9b58-5089f1f9d407/nash-v-sharper-brief-of-appellants. Accessed April 19, 2025.
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THE STATE OF SOUTH CAROLINA In The Supreme Court Appeal From Sumter County Hon. William H. Grimball, Judge SHEPARD K. NASH, against Respondent, H P. SHARPER, B. T. WILLIAMS, S. T. ROBINSON, J. H. NELSON, L. J. PETERSON, J. J. BURRELL, F. C. JAMES, I. DeQUINCY NEWMAN, E. M. MCDON ALD, EDWARD C. JONES, SR., S. J. McDONALD, SR„ JAMES DANIELS, and the NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, SUMTER CHAPTER, AN UNINCORPORATED ASSO CIATION, Appellants. BRIEF OF APPELLANTS L incoln C. Jenkins, Jr., Columbia, S. C. Robert L. Carter, o f Counsel. Supreme Printing Co., In c , 114 W orth Street, N. Y. 13, BEekman 3-2320 Questions Involved Whether Judge Grimball erred in overruling the demurrer of the defendants on the grounds that: (1) the complaint failed to set forth facts sufficient to constitute a cause of action for the reason that the alleged libelous statement is stated in the alternative; (2) it does not appear upon the face of the complaint that the alleged libelous statement was published of and concerning the plaintiff; (3) it does not appear upon the face of the complaint that the alleged libelous statement is capable of being construed as libelous; (4) it does not appear upon the face of the complaint that the alleged libelous statement was published of and concerning the plaintiff in his professional capacity as an attorney at law. 2 BRIEF OF ARGUM ENT 1. The demurrer should have been sustained for the reason that the alleged libelous statement is stated in the alternative. The outstanding authorities on the law of libel and slander concur in holding that an alleged libelous state ment in the alternative is not actionable unless both alter natives are defamatory. Perhaps the leading authority on libel is Newell. In his 4th edition, section 234, page 273, he states the rule as follows: “ Where a charge is made in the alternative, ordinar ily both alternatives must be defamatory to render the charge actionable.” Cases cited in support thereof are Blackwell v. Smith, 8 Mo. App. 43 and Lukehart v. Byerly, 53 Pa. 418. These cases involve such statements as “ you are either a thief or you got the book from a thief” (Blackwell v. Smith, supra), and “ the said Blackwell had ‘ taken apples’ or had ‘ stolen apples’ or had ‘ taken apples without asking for them’ ” (Lukehart v. Byerly, supra). Both cases, of course, hold that the statements made in the alternative are not actionable. Other eminent authority on general American law, Corpus Juris Secundum holds: “ Generally an imputation in alternative form is actionable only when both alterna tives are defamatory, and if either alternative statement is harmless the charge is not actionable.” In Atkinson v. Hartley, 1 McCord 203, 12 S. C. L. 203 this Court held: “ To render words actionable they must be spoken affirma tively and import a direct charge . . . It follows, therefore, that those that are equivocal and spoken adjectively are not so.” That case involved equivocal evidence as to whether the defendant had made a charge against plaintiff 3 which was actionable or had made a charge in somewhat different terms which would not be actionable. Bull v. Collins, 54 S. W. 870 (Texas) holds as do the above cases. The record, on the face of the complaint clearly shows that the statement does not import a direct charge. The statement is: “ ‘ He not only signed after reading the peti tion, but on one occasion directed others how to sign them. Either he is double-talking or the officials who released his statements to the press are word ing these retroactions to fit the Citizens’ Commit tees’ ” (E. 3). It thus says of one Blanding (who is not a party herein) that he is “ double-talking” and then states in the alter native that if he is not, certain “ officials” (in which cate gory plaintiff seeks to include himself) are wording “ these retroactions (sic) to fit the Citizens’ Committee.” There fore, the alleged defamatory statement is in the alterna tive. One alternative is not even alleged to be actionable by plaintiff. The case falls squarely within the general American rule that statements in the alternative are not actionable unless both alternatives are actionable. It is appellants’ position that neither alternative herein is ac tionable, but certainly both alternatives can hardly be actionable as to the plaintiff herein. 2. The demurrer should have been sustained for the reason that it does not appear upon the face of the complaint that the alleged statement was published of and concerning the plaintiff. The complaint, of course, contains an averment and certain allegations which purport to identify the plaintiff as the person concerning whom the allegedly libelous state ment was made. 4 But a mere conclusion, even if supported by allega tions which purport to support it, cannot make a case of actionable wrong where this Court can clearly see on the complaint’s face that no reasonable man could determine that the allegedly libelous remarks were made of and concerning plaintiff. As this Court held in Oliveros v. Henderson, 116 S. C. 77, 106 S. E. 865: “ The demurrers admit the facts alleged in the complaint, but do not admit the inferences drawn by plaintiffs from such facts, and it is for the Court to determine as to whether or not such inferences are justifiable; that is, to determine if the language used in the publication can fairly and reasonably be construed to have the meaning attributed to it by the plaintiff.” (Italics added.) In Phillips v. Union Indemnity Company, 28 F. 2d 701, it was held that on demurrer it is for the court to determine whether the innuendo is fairly warranted by the language declared in it. See also Stokes v. Great Atlantic and Pacific Tea Company, 202 S. E. 24. Here that alternative which supposedly refers to plaintiff is “ or the officials who released his statements to the press are wording these retroactions to fit the Citizens’ Committee” (R. 3). The complaint itself does not allege that plaintiff is an “ official” of the School Board of School District # 2 or School District #17. It does not allege that he is an official of anything. On the contrary, it alleges that his relation with these School Boards was that of counsel. “ The relationship of attorney and client is that of prin cipal and agent or master and servant; that is, apart from his connection with existing litigation, an attorney is a mere agent. An attorney is not, however, completely sub ordinate to his client as the ordinary agent is to his prin cipal. . . . ” 5 Am. Jur. 286. It would be laboring the obvious before any Court to elaborate on the proposition 5 that counsel employed by a School Board cannot even remotely be considered an official of that Board. Moreover, the allegedly libelous statement speaks in the plural of “ officials” , a large class of persons, at least extending to the members of the School Boards mentioned in the complaint and their executive officers. The com plaint attempts to fly in the face of the obvious facts ap pearing upon it by attempting to stretch the word “ offi cials” to include plaintiff; and by attempting to narrow a general class of which plaintiff is not a member, down to a single individual. If this complaint is permitted to stand then any obvi ously non-applicable statement can be set before a jury despite the fact that the statement as it appears in the complaint flatly contradicts the interpretation placed upon it by the plaintiff. 3. The demurrer should have been sustained be cause it does not appear upon the face of the complaint that the allegedly libelous statement is capable of being construed as libelous. Granting arguendo, for the moment, that a case can be made out for the proposition that (a) a statement in the alternative where one alternative is not even alleged to be libelous, can be made actionable and (b) that a statement made clearly not of and concerning the plaintiff can be made actionable in the face of the plain unequivocal lan guage of the statement, appellants submit that the state ment itself is innocuous. The alleged libelous statement as it purportedly refers to plaintiff is that “ the officials who released the statements to the press are wording these retroactions to fit the Citi zens’ Committee.” In this age of widely disseminated news and great public interest in public affairs all parties 6 to issues of public interest seek to win its favor. Press releases, press conferences, interviews, letters to the edi tor, have perhaps unfortunately, perhaps fortunately, found a permanent place in American life. Everyone realizes perfectly well that statements issued to the press are made to “ put one’s best foot forward.” The language, the timing, the balance, are all designed to present a point of view. To state that anyone who participates in the wording of a statement which may be released to the press has slanted it to fit a point of view is to state something at which no one would be surprised. No one would dream of alleging that it is libelous to state that James Hagerty, has worded a statement to suit the Republican Party or that Paul Butler, the Democratic National Chairman has worded a statement to suit the Democratic Party. Of spokesmen on any issue, great or small, national or local, to state that they have worded statements to suit those with whom they are associated or with whom they sym pathize, is to state something entirely natural and accepta ble. Surely the allegedly libelous statement in this case states nothing other than what all Americans would accept today and is not capable of being construed as libelous. 4. The demurrer should have been sustained for the reason that it does not appear upon the face of the complaint that the allegedly libelous statement is capable of being construed as libelous concerning the plaintiff in his professional capacity as attorney at law. Quite apart from the fact that the allegedly libelous statement does not even refer to the plaintiff it clearly appears that it does not refer to him or, indeed, to anyone else in the capacity of attorney at law. This statement merely refers to someone who worded a statement which was released to the press. If anything, it may taken to refer to a public relations or public information official or 7 to some kind of school board functionary. It is not the duty or employment of an attorney at law to release state ments, and it cannot be considered harmful for an attorney (surely one never identified as such) to receive comment on something allegedly done not in the capacity of attorney. Conclusion Here we have a statement made in the alternative with out it even being alleged (it could not be) that both alterna tives are libelous. It nowhere appears on the face of the complaint that the alleged libelous statement was published of and concerning the plaintiff; indeed the plain language of the complaint indicates it was made concerning a num ber of persons with characteristics plaintiff clearly does not possess. The allegedly libelous alternative is on its fact innocuous and harmless. It was not made concerning anyone in the capacity of attorney at law. The complaint is composed of hypothesis upon hypothe sis, each without substance. Such a tenuous concatenation of assumptions does not merit the sustaining of the com plaint or submission of the cause to a jury. Wherefore appellants respectively submit that the demurrer should have been sustained. Respectfully submitted, R obert L. Carter, Of Counsel. L incoln Jenkins, Columbia, S. C.