Tedder v. Merchants & Manufacturers Ins. Co. of NY
| Decision Date | 06 January 1958 |
| Docket Number | No. 7470.,7470. |
| Citation | 251 F.2d 250 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | Ingram TEDDER, Appellant, v. MERCHANTS & MANUFACTURERS INSURANCE COMPANY OF NEW YORK, Appellee. |
Philip H. Arrowsmith, Florence, S. C. (Arrowsmith & Palles, and Mitchell D. Palles Florence, S. C., on brief), for appellant.
Before SOPER and HAYNSWORTH, Circuit Judges, and THOMPSON, District Judge.
This is an action by the plaintiff, Ingram Tedder, against the defendant, Merchants and Manufacturers Insurance Company of New York, a corporation, to recover damages for certain slanderous remarks alleged to have been made concerning the plaintiff by Edward Ervin, an insurance adjuster, while acting for and within the scope of his employment in the adjustment of a fire loss for the defendant company.
The defendant relied upon the following: (1) It denied that the alleged defamatory statements were made; (2) If made, it denied they were made within the scope of Ervin's employment; and (3) If made within the scope of Ervin's employment, there was no publication and the remarks were privileged.
The defendant moved for a directed verdict at the conclusion of the plaintiff's evidence, which was denied. The motion was renewed at the conclusion of all the evidence and it was again denied. All issues were submitted to the jury and there was a verdict for the plaintiff in the sum of four thousand dollars. The trial judge granted the motion of the defendant for judgment non obstante veredicto. He assigned the following as his reason:
"The adjuster was not acting within the scope of his authority when he made the alleged slanderous remarks".
From this adverse judgment the plaintiff appealed.
The jury having resolved all of the issues in the plaintiff's favor, he is entitled to have the evidence considered in the light most favorable to him, and to be given the benefit of every inference of fact fairly deducible therefrom. Burcham v. J. P. Stevens & Co., Inc., 4 Cir., 209 F.2d 35. Viewing the evidence in this light, the most relevant facts are:
The plaintiff sharecropped tobacco on the lands of C. P. Brown, for whom Wilbur Brown was acting as attorney-in-fact. The tobacco was stored in a tenant house, or packing house, owned by C. P. Brown. The building and its contents, which were insured by the defendant company in the name of Wilbur Brown, were destroyed by fire, and the loss was referred to Adjuster Ervin for adjustment.
With the first proof of loss Ervin reported to the defendant company that C. P. Brown was the owner of the building, and that C. P. Brown and plaintiff Tedder owned the tobacco. After the defendant received this information, it advised Adjuster Ervin that "there was a few questions they wanted answered", and ordered a further investigation.
When it was shown that Wilbur Brown was the lawful attorney-in-fact for C. P. Brown, the defendant admitted its liability for the loss of the building. However, the adjuster continued his investigation of the loss of the tobacco. He examined the books of Wilbur Brown to ascertain the amount of tobacco in the building at the time of the fire. He later filed another proof of loss.
Approximately two years before the fire here mentioned the home of the plaintiff Tedder had been destroyed by fire. Tedder had insurance with a fire insurance company other than the defendant company; his loss was paid. The defendant company, while investigating the fire loss of the tobacco under Brown's policy, instructed the adjuster to make an investigation of the incident in which Tedder's home was burned. Ervin thought such investigation was necessary for the proper adjustment of the claim for the loss of the tobacco which he had for adjustment. He testified as follows:
Ervin continuing:
Some time after the second proof of loss was made, Brown, not having received his money, went from his home in Lake City to Adjuster Ervin's office in Sumter to inquire as to why he had not received the check for the insurance. It was at this conference that the slanderous remarks were alleged to have been made.
When Brown asked Ervin why the insurance had not been paid, Ervin told him he would have to file another proof of loss; he also told Brown that the defendant insurance company had definite records in its New York office which would show as a fact that Tedder had burned his home some two years before for the purpose of collecting the insurance thereon; that the defendant knew and could prove that Tedder had stolen the tobacco out of Brown's tenant house, or packing room, and then burned the building. He further stated that the defendant company would not pay Brown one penny on his claim if Tedder, the sharecropper, was going to share in it in any way. He also advised Brown to get rid of Tedder as a sharecropper, and stated that if Brown had another fire loss, the defendant company definitely would not pay it, because Tedder was a known arsonist and a bootlegger. The foregoing conversation took place in Adjuster Ervin's office while Brown and Ervin were discussing the settlement of the tobacco loss, and before the final proof of loss was signed by Brown. After this conversation Brown told Tedder he could not keep him as a sharecropper and gave as his reason the conversation he had with the adjuster, which he related to Tedder. Brown then discharged Tedder as a sharecropper.
In order to hold a corporation liable for a slander uttered by its agent, it must appear that the agent at the time was acting within the scope of his employment, and in the actual performance of the duties of the corporation touching the matter in question. Johnson v. Life Insurance Company of Georgia, 227 S.C. 351, 88 S.E.2d 260, 55 A.L.R.2d 813.
Brown had assumed, when he filed the first proof of loss, that the insurance covered the entire tobacco crop. He, therefore, filed a claim for the value of the entire crop, and intended to turn over to Tedder one-half of the money. There was some difference of opinion between the insurance company and its adjuster as to whether Tedder had an interest in the insurance money. Brown was asked:
Mr. Ervin also stated:
"I thought the coverage would extend to both of them."
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