Bell v. Clinton Oil Mill

• Decision Date: 19 July 1924
• Docket Number: 11556.
• Citation: 124 S.E. 7,129 S.C. 242
• Parties: BELL v. CLINTON OIL MILL ET AL.
• Court: South Carolina Supreme Court

124 S.E. 7

129 S.C. 242

BELL v. CLINTON OIL MILL ET AL.

No. 11556.

Supreme Court of South Carolina

July 19, 1924

Appeal from Common Pleas Circuit Court of Richland County; J. W. De Vore, Judge.

Action by Theo. Bell against the Clinton Oil Mill and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Nelson & Mullins, of Columbia, for appellant.

D. W Robinson, of Columbia, for respondents.

COTHRAN J.

Action for $50,000 damages on account of an alleged slander uttered by one Matthew, an agent of the defendant corporation, to one Geiger, another employee, of and concerning the plaintiff who had been an employee also. The slanderous words set forth in the complaint were:

"You had better tell Bell that the amount due by him is going to be reported to the bonding company and that he had better pay it up at once."

Matthew who is also a defendant in the case, was produced as a witness for the plaintiff, and he testified that the statement made by him to Geiger was this:

"You might get word to Theo. [referring to the plaintiff] that the company is going to place his account with the bonding company."

The case appears to have proceeded upon the latter statement as the basis of the action, rather than that alleged in the complaint. The complaint alleges that by said language the defendants intended to charge, and did thereby charge, the plaintiff with having committed a breach of trust, with having appropriated to his own use money belonging to said corporations, or some one of them, thereby charging him with having committed a felony and a crime against the laws of South Carolina, and that said language was so understood by those who were present and heard it; that the charge was false and malicious, and damaging to his character, etc.

The answer put in issue the material allegations of the complaint, except that they admitted that Matthew spoke the words admitted by him as stated above, but in his private capacity, as a friend of the plaintiff, and with no purpose to injure him. To understand the connection, an explanation of the circumstances is necessary, as to which there appears to be no controversy, as follows:

From 1914 until August 10, 1922, the plaintiff was employed by the defendant American Agricultural Chemical Company and its various subsidiary corporations as cashier. Beginning, it seems, in July, 1915, the plaintiff was allowed to draw certain amounts of money, as advancements upon his expense account. By August, 1921, the advancements amounted to $845.12, and his expense accounts to $574.30, leaving a balance due by him of $270.82. About March, 1922, demand was made upon plaintiff for said balance, which he was able to pay. He, however, made an arrangement with Mr. Darlington, district manager, to pay the indebtedness at the rate of $20 per month. The counsel for the plaintiff say in their printed argument:

"This arrangement was carried out up until the time Mr. Bell left the A. A. Company in August, at which time he had paid $158, leaving a balance due on the account of approximately $300." Exactly how this balance was arrived at is not explained, nor is it material to the issues. It sufficiently appears that when the plaintiff severed his connection with the company he owed a balance on the account. During the period of the plaintiff's service, the A. A. C. Company held a blanket bond of the National Surety Company, indemnifying it from pecuniary loss which it or its subsidiary companies might sustain "by any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, abstraction, or misapplication," by any of the employees designated in an attached schedule, which included the name of the plaintiff. As soon as the plaintiff left the employment of the company, the treasurer, whose office was in New York, began pressing for a settlement by him of the balance due on the account. On August 11, 1922, he wrote to Mr Darlington, who was district manager, with offices in Columbia, taking the position that the indebtedness was due to the fact that the plaintiff had not returned certain funds advanced to pay traveling expenses, "in other words, it would appear that these funds wers appropriated to his own use, which, of course, allows us to take this matter up with the bonding company," and concludes by saying:

"You might say to Mr. Bell that, unless he liquidates this indebtedness to us by Friday, August 18th, we will ask the bonding company to reimburse us, and let them make such arrangements with Mr. Bell as they see fit."

Having no reply from Mr. Darlington to that letter, the treasurer wrote him again on August 30th, calling his attention to the letter of August 11th, and saying:

"I am of the opinion that, unless we now ask the bonding company to take this matter up, we will lose any advantage that we now have under the bond. It seems to me that Mr. Bell would much prefer to borrow the amount he owes us and liquidate this indebtedness rather than have the bonding company make demands for the return of our funds. Will you please let me have your opinion in the matter?"

On September 5th Mr. Darlington replied to the letter of August 30th saying:

"Relative to asking the bonding company to make good this amount, would suggest that you look into this carefully, for the reason his indebtedness with this company had the approval of Mr. Jones, who was in authority at that time, and this is not a question of shortage. I am merely giving you this information for what it is worth. You no doubt know how to handle it better than I would, so proceed as you think best in the matter."

On September 12th, the treasurer replied to the letter of the 5th, saying:

"I note your suggestion that the authority of Mr. Jones might have some bearing on our being able to recover from the bonding company,"

--and directing Mr. Darlington to make a formal demand upon plaintiff for the balance on the account, and to forward a detailed statement of it for submission to the bonding company, with which he complied. It appears that Mr. Darlington, district manager, and Matthew, his assistant, had joint supervision of such accounts as the plaintiff owed and of claims against the bonding company in connection therewith. The exact date does not appear in the record, evidently after the correspondence referred to between Darlington and the treasurer, dated August 11th, August 30th, September 5th, and September 12th; but about that time Matthew had before him this correspondence, and said to Geiger, another employee, "You might get word to Theo. [referring to the plaintiff] that the company is going to place his account with the bonding company"--manifestly meaning that the company intended to make a claim against the bonding company for the balance due by the plaintiff, as a liability under the bond.

This is the slander of which the plaintiff complains, interpreted by him as a charge that the plaintiff had committed a breach of trust by appropriating to his own use money belonging to the company, and had thereby committed a crime against the laws of South Carolina; in other words, that he had committed a breach of trust with fraudulent intent. The language quoted does not upon its face impute to the plaintiff the commission of a crime; it is therefore not actionable per se. If it can be construed as actionable, it must be by reason of extrinsic facts which, taken in connection with the language used, disclose an intention on the part of the utterer to charge the plaintiff with having committed a crime.

The bond indemnified the company from loss on account of certain specified acts of the employee: 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. There may have been some force in this assumption, if the bond had purported to indemnify the company only against loss sustained by the criminal conduct of the employee.

We do not think that the matter can be more clearly and accurately stated than was done by his honor, the presiding judge, in his charge to the jury:

"I charge you, as a matter of law, that the assertion here that the plaintiff committed a breach of trust, having appropriated money to his own use, does not state a crime against the laws of South Carolina. A man may appropriate money to his own use without being guilty of a crime, or may commit a breach of trust without committing a crime. Breaches of trust are committed every day in the week, I reckon, and every week in the year, all over this country; but they do not necessarily constitute crimes, and the only way that that act could become a crime would be to do it with fraudulent intention. If a man commits a breach of trust with fraudulent intention, that is a crime; and if you charge a person with committing a breach of trust with fraudulent intention, then you charge him with a crime. But just to say that a man has committed a breach of trust, or that he has appropriated money to his own use, does not state a crime against the laws of this state. * * * There has been so much said about this bond that I charge you, as matter of law, that this bond covers other defaults and shortcomings, so to speak, of a person who is required to give it, besides those things which amount to a crime. The bond says it is given to reimburse the party to whom it is given

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