Parrish v. Allison
656 S.E.2d 382, 376 S.C. 308, 2007 S.C. App. LEXIS 232 (2007)
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Rule of Law:
When a spoken statement uses a word susceptible to both an innocent and a defamatory meaning, the determination of whether it constitutes slander per se is a question of fact for the jury. Separately, truth is an affirmative defense in a defamation action that is waived if not explicitly pleaded in the responsive pleading.
Facts:
- Kim Parrish and her great-uncle, Earl Allison, had a history of family disagreements, often concerning family land.
- Parrish appeared at a Laurens County Council meeting to request the closure of a road near her property for safety reasons.
- A local newspaper misquoted Parrish, erroneously reporting that she told the council a man was run over on the road in question.
- Allison read the incorrect newspaper article and concluded Parrish had lied to the council.
- At a subsequent council meeting, a correction regarding the newspaper error was announced, but Allison, who was hard of hearing, did not hear it.
- Believing Parrish was lying to the council, Allison spoke in opposition to the road closure.
- During his speech, Allison stated that Parrish had 'conned his mother [Parrish’s great-grandmother] into signing her land over to [Parrish]' and 'conned [his mother] out of her insurance money.'
Procedural Posture:
- Kim Parrish sued Earl Allison for slander per se in a South Carolina trial court.
- At the close of evidence during the jury trial, the court denied Parrish's motion for a directed verdict.
- The trial court, over Parrish's objection, permitted Allison to argue truth as a defense and instructed the jury on that defense, despite Allison not pleading it in his answer.
- The jury returned a verdict in favor of the defendant, Allison.
- The trial court denied Parrish's post-trial motions for judgment notwithstanding the verdict and for a new trial.
- Parrish, as the appellant, appealed the trial court's judgment to the intermediate appellate court.
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Issue:
Does a defendant's statement that a plaintiff 'conned' a relative out of property constitute slander per se as a matter of law, and can the defendant raise truth as a defense at trial if it was not pleaded as an affirmative defense?
Opinions:
Majority - Anderson, J.
No, the statement did not constitute slander per se as a matter of law, but yes, the defendant was barred from raising truth as a defense because it was not affirmatively pleaded. The court reasoned that the word 'conned' is ambiguous and susceptible to two meanings: a criminal one (swindled) and an innocent one (persuaded). Because reasonable minds could differ on the meaning, it was a question of fact properly submitted to the jury to decide based on the context and circumstances. However, the court found the trial judge erred in allowing Allison to argue the truth of his statements. Under Rule 8(c) of the South Carolina Rules of Civil Procedure, truth is an affirmative defense that must be set forth in a responsive pleading. Allison failed to do so, thereby waiving the defense, and it was a reversible error for the trial court to instruct the jury on it.
Concurring - Short, J.
Yes, the trial court erred in failing to direct a verdict on the issue of slander per se. While I agree with the majority that the case must be reversed due to the trial court's error regarding the unpleaded affirmative defense of truth, the statements did constitute slander per se as a matter of law. Allison’s intent was to discredit Parrish, and he explicitly called her a liar. In this context, the statement that Parrish 'conned' his mother out of her property could only be understood as an accusation of a crime of moral turpitude, such as obtaining property by false pretenses. Therefore, there was no innocent meaning for the jury to consider, and the trial judge should have granted Parrish's motion for a directed verdict on this issue.
Analysis:
This case clarifies the division of labor between judge and jury in defamation cases involving ambiguous language, establishing that if a word is reasonably susceptible to an innocent meaning, its defamatory nature is a question of fact for the jury. It strongly reaffirms the procedural requirement that affirmative defenses, such as truth, must be explicitly pleaded in a defendant's answer or they are waived. This prevents trial-by-ambush and ensures plaintiffs are on notice of the defenses they will face. The decision serves as a crucial reminder for litigators about the importance of thorough and precise pleading, as a failure to comply with procedural rules can be fatal to a defense, even a potentially meritorious one.
