Thomas v. Southern Grocery Stores, Inc.

I concur in the leading opinion, written by Mr. Chief Justice Stabler, in all the positions taken by him, save one. It is proper that I state my grounds of dissent as to that.

The action is one for libel and slander. The main office of appellant is at Atlanta, Ga.; it has a store at Easley, S.C., of which respondent was manager. July 28, 1933, C.H. Moore, vice-president of the corporation, sent the following telegram to A.J. Hambrick, the superintendent of its stores in South Carolina: "Check John Thomas out immediately, $149.00 short."

The action for libel and slander followed. The complaint states three causes of action, viz.:

(1) That the defendant Hambrick and other agents of the corporation reported to the company's home office that plaintiff was short in the sum of $149.00, and requested instructions by wire what to do about it; that Moore, acting jointly with the defendant Hambrick and for the corporation, issued "the above false, malicious, defamatory and libelous telegram."

(2) That Hambrick upon receipt of the telegram wentto the Easley store, "and while acting within the scope of hisauthority, wickedly intending to injure the plaintiff in hisbusiness, reputation, and good name, did jointly for himselfand defendant corporation, maliciously and falsely issue,publish and circulate the aforesaid false and defamatory matterof and concerning plaintiff by reading the said telegramaloud in the presence of clerks, customers and other personsin the said store, and by permitting J.H. Hudson and othersto read the said telegram; that the defendants by their jointpublication aforesaid meant to and did charge that plaintiffhad committed a breach of trust with fraudulent intent. * * *" (Italics added.)

(3) That Hambrick, while at the Easley store and acting within the scope of his authority, jointly for himself and the defendant corporation., and willfully intending to injure plaintiff in his business, good name, and reputation, uttered and published the following false and slanderous matter of and concerning plaintiff in the presence of clerks, customers, and others: "You are short with us $149.00. We are satisfied you are guilty. We are through with you and want you to leave our store immediately."

It is pertinent to say that the defendants for answer said, among other things, that the language contained in the telegram, viz., "$149.00 short," was not intended to and did not charge Thomas with misappropriating money with fraudulent intent but was meant to show that the store of which plaintiff was manager showed an operating loss of $149.00 from June 29 to July 18.

The jury found a verdict for plaintiff of $10,000.00 actual damages against the corporation, and $200.00 actual damages against Hambrick, on the second cause of action. Thereupon plaintiff's counsel suggested that the jury find for the defendants on the first and third causes of action, to which defendants' counsel consented. Whereupon the jury rendered the following verdict: "On the first cause of action we find for the defendant no cause of action. W.A. Perry, Foreman. On the second cause of action we find for the plaintiff ten thousand dollars actual damages against the Southern Grocery Stores, Inc., and two hundred dollars against A.J. Hambrick. W.A. Perry, Foreman. On the third cause of action we find for the defendant no cause of action."

No rule of law is more clearly established in this jurisdiction than this: In an action against a master and servant for negligence or a tort committed by the servant, whose wrong is imputable to the master, the amount of actual damages awarded against the master cannot exceed the amount awarded against the servant. It is needless to cite authorities. It will not be denied that this is the established law of the jurisdiction.

It would seem clear then that the verdict which assesses $10,000.00 against the Southern Grocery Stores and $200.00 against Hambrick cannot stand.

But it is argued in the main opinion that there is proof that the corporation acted through another agent than Hambrick, to wit, C.H. Moore, who sent the telegram to Hambrick, and that the jury may have predicated the larger verdict against the corporation on that view. The sufficient answer to that proposition is that the jury in express language has declared that there was "no cause of action" on the first alleged cause of action, which, as is shown by the record, is based solely on the fact that C.H. Moore, vice-president of the corporation, sent the telegram to Hambrick. In other words the jury, in effect, has said that the sending of the telegram gave no cause of action; that the telegram in itself was harmless; that it only became harmful through the action, conduct, and language of Hambrick as set out in the second cause of action. The jury did not say we find for the defendant on the first cause of action and stop there, but added as if to emphasize their meaning, the significant words: "No cause of action."

The testimony of Mr. C.H. Moore discloses that on two other occasions Thomas had been discharged for running short in the production of business for the store; that his importunities and relation of his poor circumstances induced the corporation to give him "another chance"; that the corporation had shown great leniency to and consideration for Thomas; that the language of the telegram "$149.00 short" related to this shortage in production and must have been so understood by Thomas; there was never an intent to charge him with a misappropriation of money with fraudulent intent. Evidently the testimony of Moore must have impressed the jury, as it will impress any dispassionate person, that it was true. Hence the jury found that as to him there was no cause of action.

On the contrary, the jury must have been deeply impressed with the evidence that Hambrick needlessly published the telegram, rudely told Thomas he was guilty of breach of trust, and discharged him in such manner as to cause him shame and expose him to public criticism.

I submit that the whole verdict in its final form bespeaks the thought and opinion of the jury in the plainest and most certain terms, to wit, that Hambrick by his foolish conduct and language in the store at Easley was the sole perpetrator of the delict which brought about the action. It appears to me that is the only logical and reasonable deduction which can be made from that verdict. Any other must rest on conjecture, or the hypothesis that the jury considered Moore as partly responsible, in spite of the fact that the jury exonerates him.

The question of the joint liability of master and servant and the measure of damages against them is treated in the case of Kirby v. Gulf Refining Co., 173 S.C. 224,175 S.E., 535, where some of the authorities are collated.

In the case of Johnson v. Atlantic Coast Line R. Co. et al.,142 S.C. 125, 140 S.E., 443, the jury found against the railroad $1,500.00 punitive and $500.00 actual damages; and against Dorsey, the agent, $300.00 punitive and $200.00 actual damages. On motion for new trial the Circuit Judge required the verdict for actual damages to be equalized as between the defendants, but permitted the verdict to stand as to punitive damages. This was sustained on appeal.

In the case of Weeks v. Carolina Power Light Co., 156 S.C. 158,153 S.E., 119, 121, this Court said: "Undoubtedly, as the appellant contends, the law is that where a master and his servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely on the servant's conduct, a verdict against the master alone is illogical and cannot stand." Citing the Johnsoncase supra.

I am in accord with the conclusions of the main opinion except as it relates to the difference found in the verdict against the Southern Grocery Stores, Inc., and Hambrick. As to that I am obliged by my opinion of the law applicable to the question, and my view of the facts, to submit this dissenting opinion.

I think the case should be sent back for a new trial, unless within ten days after the remittitur goes down the plaintiff shall enter on the record of the judgment a reduction of the verdict against Southern Grocery Stores, Inc., from $10,000.00 to $200.00 to equalize it with the verdict against A.J. Hambrick.