Bosdell v. Dixie Stores Co.

• Decision Date: 11 February 1933
• Docket Number: 13578.
• Parties: BOSDELL v. DIXIE STORES CO.
• Court: South Carolina Supreme Court

167 S.E. 834

168 S.C. 520

BOSDELL v. DIXIE STORES CO.

No. 13578.

Supreme Court of South Carolina

February 11, 1933

Appeal from Common Pleas Circuit Court of McCormick County; C.J Ramage, Judge.

Action by J. L. Bosdell against the Dixie Stores Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hicks & Johnston, of Greenville, and Allen & Doyle, of Anderson, for appellant.

F. A Wise, of McCormick, and J. Wm. Thurmond and J. Strom Thurmond, both of Edgefield, for respondent.

STABLER Justice.

This is an action for damages based on an alleged libelous letter written by one M. S. Merritt, vice president and secretary of the defendant company, to one C. G. Campbell, manager of defendant's store at McCormick, S. C.

It appears that one of Merritt's duties, as an officer of the company, was to take inventories; that is, about every thirty days to make a check of all items of merchandise in each store under his supervision and compare them with the items listed in the ledger, a book in which was entered a record of all merchandise brought into the store for sale as well as a credit of the amount of every item sold. By such comparison, he was able to detect, in the making up of his inventories, any shortages that might exist. He testified that some thirty days before he wrote the letter in question he found that there was a shortage in the store at McCormick, which was under his supervision, and so advised the manager; that about two weeks later he took another inventory, and found a shortage of from $50 to $75; that it was then he wrote the letter about which plaintiff complains; and that while he thought Bosdell, who was then, and had been for some time prior thereto, a clerk in the store, was responsible for the shortage, he was not accusing him, by what he wrote, of anything except carelessness in the weighing of goods. The letter written by Merritt to Campbell, as set out in the complaint, was as follows:

"Dear Mr. Campbell: The inventory is still unsatisfactory. I advise you to let Mr. Bosdell go. Get that other man as cheaply as you can. This shortage has got to stop. (Signed) M. S. Merritt."

The complaint alleged, inter alia, "that by the contents of the publication aforesaid, the defendant meant to, and did, charge the plaintiff with wilfully and knowingly taking either the goods, or the money, or both, from said store, which charges charged this plaintiff with the commission of the crime of larceny, indictable under the laws of this State, and involving moral turpitude on the part of the plaintiff."

The defendant interposed a general denial, and also specifically denied that it intended, by what was said in the letter, to charge the plaintiff with "wilfully and knowingly taking either the goods or the money or both from the store." It also pleaded the following defense: "That the letter set forth in the complaint was written in good faith; was confidential and privileged, having been written by proper officials of this defendant to the manager of the store, for the purpose of protecting the interest of this defendant, and that the statements made in the letter and the correct inferences to be drawn therefrom, are and were true, and were necessary to properly conduct the mercantile business which defendant was engaged in."

On trial of the case the jury found for the plaintiff $700. Motions for a nonsuit, a directed verdict, judgment notwithstanding the verdict, and, failing that, a new trial, duly made by the defendant, were all refused.

As stated by appellant's counsel in oral argument, the main questions presented by the appeal are those which arise out of the refusal of the trial Judge to grant defendant's motion for a nonsuit. It is contended that the court committed error in overruling the motion "for the reason that the plaintiff's own testimony was susceptible of no other reasonable conclusion than that the communication was a qualifiedly privileged one."

The plaintiff testified that he worked on Saturdays for the defendant, at its McCormick store, in 1928, and that he was then hired by its manager as a regular clerk, and continued to work there in that capacity until April 4, 1930, at which time he was discharged; that others worked in the store on Saturdays and during holidays and on busy days, all such help having free access to the cash register; that everything brought into the store was billed to sell at a certain price and the clerks were not allowed to cut the price fixed; that C. G. Campbell was the manager of the store and handled the cash, and made up and sent in a report every day showing a statement of the money received for merchandise sold the day before; that M. S. Merritt, one of the head officers of the company, came into the store every Tuesday, his duties being to see how everything was getting along and if anything was needed; that he would also come in once a month to take stock, and that perhaps he had something to do with managing the store; that at no time was anything said to witness about a shortage, or about his being careless in selling merchandise; and that he had never been accused of any crime before.

In the recent case of Turner v. Montgomery Ward & Co., 165 S.C. 253, 163 S.E. 796, 799, the court said:

"In Fitchette v. Sumter Hardwood Company, 145 S.C. 53, 142 S.E. 828, 834, this court discussed somewhat at length the question of qualified privilege. It will not be necessary to repeat here all that was said in that case. We refer, however, to what was there quoted from the dissenting opinion of Mr. Justice Cothran in Switzer v. Express Company, 119 S.C. 237, 112 S.E. 110, 26 A. L. R. 819, as stating, in succinct form, the issues which so frequently are to be determined when the defense of qualified privilege is presented: 'Was the "communication," alleged to have been slanderous, one of qualified privilege; this question depending upon the further question whether or not, the "occasion" being shown to have been one of qualified privilege, the occasion was so abused, or its bounds so exceeded by ill motive, as to deprive the communication of the qualifiedly privileged character which is presumed by the fact of its utterance upon a qualifiedly privileged occasion?'

"The court then went on to say: 'It is not enough to show that the occasion was one of privilege, but it must also appear that the communication itself was made in good faith and was privileged as made.'

"Quoting from Newell on Slander and Libel (4th Ed.) 418: 'But it must be remembered that, although the occasion may be privileged, it is not every communication made on such occasion that is privileged. It is not enough to have an interest or duty in making a communication; the interest or duty must be shown to exist in making the communication complained of. A communication which goes beyond the occasion exceeds the privilege.'

"And from 36 C.J. at page 1248: 'The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interests or his duties require.'

"With respect to the question of malice the court said: 'Ordinarily the publication of defamatory words actionable in themselves carries a prima facie implication of malice, and the plaintiff is not required to produce proof of malice beyond proof of the publication itself, but where the occasion is privileged there is a "prima facie presumption to rebut the inference of malice" and the burden is on the plaintiff to show malice in fact.'

"And held, on the record in the case before it: 'As to the actual malice there was sufficient testimony to go to the jury, who, in deciding that question, might have recourse both to the language of the communication itself and to the extrinsic evidence. It was for the jury to say, too, whether the language used went further than the occasion required, if the occasion was privileged."'

In the case at bar, it is clear that the language used in the letter was susceptible of two meanings; one innocent, and the other defamatory. It might reasonably be construed as merely imputing to the plaintiff, in the performance of his duties as a clerk, acts of carelessness resulting in the shortage complained of; but, on the other hand, it might reasonably bear the construction that plaintiff was guilty of theft of defendant's goods, a crime involving moral turpitude. It was for the jury to say, in all the circumstances, in which sense it was used. While the occasion was undoubtedly privileged, it could not be said as a matter of law that the language used, by way of comment, "This shortage has got to stop," if found to be defamatory, did not go beyond what was necessary to protect defendant's interests, thus destroying the privilege, and this question also was for the jury. And there was sufficient evidence on which to predicate a finding of malice in fact. It is evident, therefore, that the entire question was correctly submitted to the jury, who might take into consideration all the facts and circumstances of the case, the situation of the parties, etc., in determining whether the defense of qualified privilege was sustained.

The appellant also urges that there was "no evidence of any publication of the letter," and that the trial court committed error in refusing the motion for a nonsuit on that ground. Plaintiff stated that he got the letter out of the post office and carried it to Campbell, the manager, and testified further as follows:

"Q. Where were you and where was he, when he opened the letter? A. We were in the store.

"Q. Can you state if he

...