Campbell v. Life Casualty Ins. Co.

February 20, 1930. The opinion of the Court was delivered by This is a suit for slander instituted in the Court of Common Pleas for Richland County on February 24, 1928, and tried before Hon. W.H. Townsend and a jury on June 13, 14, 1928. The jury returned a verdict of $1,000 actual and $2,500 punitive damages against each of the defendants. Subsequently by an order of Judge W.H. Townsend dated July 11, 1928, this verdict was modified so as to make the verdict for actual damages a joint verdict against the defendants in the sum of $1,000, and allowing the several verdicts for punitive damages of $2,500 against each defendant to remain as found by the jury.

From the judgment entered on this verdict the defendants appeal.

EXCEPTIONS 1. His Honor erred, it is respectfully submitted, in refusing motion of the defendants for a nonsuit, the error being that the alleged slanderous language, to wit, that plaintiff "was $32.20 short in cash," "if you don't pay it I will turn it in to the bonding company and they will pay it," did not impute to the plaintiff the commission of a crime in that the testimony of the plaintiff, Campbell, and of the only two witnesses, Sloan and Lindsay, who claimed to have heard the statements, was to the effect that $30 of this amount was a surplus in the debit when Campbell took it over from a former agent, and was cash which had never been in the hands of Campbell but was simply in the account; and the plaintiff could not have been charged with unlawful and fraudulent conversion, a breach of trust with fraudulent intent and embezzlement in reference thereto; that the $2.20 was an amount due for excess arrears charged against the plaintiff and which was not a cash shortage, and there was no competent evidence that the bond of Campbell covered a criminal charge; so that the said language, given its reasonable and usual meaning and construed in the light of the facts and circumstances well known to all of the witnesses who claimed to have heard it, could not have been construed by them as a charge of a crime against the plaintiff, and a nonsuit was proper.

2. That his Honor erred in admitting over objection of the defendant's testimony of the witness Sloan as to the condition of the bond of the plaintiff Campbell when the witness had admittedly never seen the Campbell bond, had nothing to do with Campbell in his connection with the company, the bond was not in evidence and the testimony of Sloan as to what the bonds of other agents covered, without any proof that the same condition appeared in the Campbell bond, was hearsay, incompetent, irrelevant, and highly prejudicial.

3. That his Honor erred in refusing motion for a directed verdict for the defendants on the ground that the alleged slanderous language used, read in the light of the facts and circumstances known and understood to all of the persons who heard such slanderous statement, and in the absence of any competent testimony as to the condition of the bond of the plaintiff Campbell, and whether the threat to report to the bonding company would of itself imply the charge of a crime, could not be construed as charging the said plaintiff with a crime as charged in the complaint, and was not, therefore, actionable.

The questions involved are:

1. Whether, in view of the testimony, the trial Judge erred in refusing the defendant's motions for a nonsuit and a directed verdict.

2. Whether or not his Honor erred in admitting over the defendant's objection the testimony of witness Sloan, whose duty it was to make reports to the bonding company in other cases of default under the bond, when the testimony of the witness was to the effect that his knowledge of why these reports were made, together with the language used, made the impression on him that the plaintiff was being charged with fraudulent misappropriation of funds and especially in view of the testimony of witness Lindsay at page 63, folios 249-254, and that of defendant Hair, page 126, folio 503.

The first exception charges error on the part of the trial Judge in refusing the defendant's motions for a nonsuit and a directed verdict. By reference to the testimony of the plaintiff, Campbell, we find that the plaintiff testified that the defendants had charged him with being "short in cash." And the testimony of the other witnesses offered by the plaintiff was to the same effect; and the impression, as testified to by the witnesses, was that Campbell was being charged with a misappropriation of funds belonging to the company for which he worked, and that such misappropriation of funds, according to their impression, amounted to a breach of trust with fraudulent intent.

Our Court has without exception held that the alleged slanderous words used must be given their ordinary popular meaning, and if they are susceptible of two meanings, one slanderous and the other innocent, it must be left to the jury to determine from all of the circumstances attending the publication in what sense the defendant used them. Eifert v. Sawyer, 2 Nott McC., 511, 10 Am. Dec., 633; Jones v. Rivers, 3 Brev., 95; Davis v. Johnston, 2 Bailey, 579; Hugley v. Hugley, 2 Bailey, 592; Creiger v.Bunton, 2 Rich., 395; Morgan v. Livingston, 2 Rich., 573;Black v. State Co., 93 S.C. 475, 77 S.E., 51, Ann. Cas., 1914-C, 989; Nunnamaker v. Smith, 96 S.C. 299;80 S.E., 465; Duncan v. Record Publishing Co., 145 S.C. 264,143 S.E., 31.

The defendant would not be entitled to a nonsuit unless there was no evidence on the part of the plaintiff to sustain any of the allegations of the complaint upon which he relied to make out the case of slander. There was sufficient evidence in the present case to establish the allegations of the complaint, and the weight of the evidence, or the sufficiency of it, was a question for the jury, and his Honor did not err in refusing defendant's motion for a nonsuit. For the defendant to be entitled to an order of nonsuit, there would have to appear a total absence of evidence to establish the material allegations of the complaint.Munroe v. Williams, 35 S.C. 572; 15 S.E., 279.

On the motion made by the defendant for a directed verdict, the plaintiff was entitled to have the evidence construed most strongly in his favor. Questions of fact, when in dispute, as well as the inferences to be drawn from such facts after they have been determined, should be submitted to the jury for its determination, and the trial Judge cannot properly direct a verdict unless only one inference could reasonably be drawn from the facts and circumstances. Taylor v. Winnsboro Mills, 146 S.C. 28;143 S.E., 474.

We do not think that his Honor committed any error in admitting over objection the evidence of Sloan. He (Sloan) was testifying of his own knowledge as to what the bond covered; and Hair, the agent of appellant, must have known or should have known what the bond covered, in checking up respondent's account. Hair charged that Campbell was short and threatened to report him to the bonding company. That was properly submitted to the jury, whether Hair meant Campbell was guilty of "personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, abstraction, and misapplication of funds." Some of these are essentially violations of the criminal law; others, not. It seems to be assumed by the plaintiff that the fact that the balance of the account due by him was to be demanded of the bonding company as a liability under the bond, necessarily implied that the plaintiff had committed a crime, and that, if he did not settle, the bonding company would institute criminal proceedings against him.

We see no error in any of the exceptions as complained of; all exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.

MR. JUSTICE COTHRAN dissents.