Duckworth v. First Nat. Bank, 19096

• Decision Date: 20 August 1970
• Docket Number: No. 19096,19096
• Citation: 176 S.E.2d 297,254 S.C. 563
• Parties: Troy DUCKWORTH, Respondent, v. The FIRST NATIONAL BANK of South Carolina, Appellant.
• Court: South Carolina Supreme Court

Page 297

176 S.E.2d 297

254 S.C. 563

Troy DUCKWORTH, Respondent, v. The FIRST NATIONAL BANK of South Carolina, Appellant.

No. 19096.

Supreme Court of South Carolina.

Aug. 20, 1970.

Boyd, Bruton, Knowlton & Tate, Columbia, for appellant.

Cromer & Louthian, Columbia, for respondent.

MOSS, Chief Justice:

Troy Duckworth, the respondent herein, instituted this action against the First National Bank of South Carolina, the appellant herein, to recover damages on account of certain alleged slanderous words spoken of and concerning him by an officer of the appellant.

The case came on for trial before The Honorable John Grimball, and a jury, at the 1969 Term of the Court of Common Pleas for Richland County, and resulted in a verdict in favor of the respondent for actual and punitive damages.

At appropriate stages of the trial, the appellant made a motion for a directed verdict on the grounds that the only reasonable inference to be drawn from the testimony is, (1) that there was no publication by the appellant of the alleged slanderous statement; and (2) that the alleged slanderous statement was qualifiedly privileged and there was no proof of actual malice on the part of the appellant sufficient to destroy such privilege. After an adverse judgment the appellant moved for judgment Non obstante veredicto, and, in the alternative, for a new trial, on the same grounds as were included in the motion for a directed verdict. The appellant filed a counterclaim against the respondent and sought to recover from him as an endorser on the worthless check in question in this case. It is also asserted by the appellant that it was error for the trial judge to refuse its motions for a directed verdict, for judgment Non obstante veredicto, or, in the alternative, for a new trial, as to its counterclaim based upon the respondent's endorsement of the worthless check. All of these motions were refused and this appeal followed.

It appears from the testimony that in August, 1966, the respondent became the manager for a middle weight boxer named Tommy Fields. The respondent loaned Fields various sums of money from time to time, totalling $1,000.00. This sum was to be paid from a check Fields was to receive for participating in a European Prize Fighting Tour in which he had engaged prior to the respondent becoming his manager. The respondent was to be made a payee, along with Fields, on the check to be received for such overseas fights. On April 13, 1967, a check was received purportedly drawn by 'Sports Illustrated' on the Swiss Banking Corporation of Geneva, Switzerland, in the amount of $7,000.00, and payable to the respondent and Fields. This check was endorsed by Fields and the respondent and deposited for collection in the Bank of Augusta, Augusta, Georgia. Four weeks later the check was returned through normal banking routine to the Bank of Augusta with notations on the front and back thereof that the check had been dishonored and was 'no good'. The dishonored check was delivered to the respondent and, thereafter, in an effort to collect the check the respondent and Fields went to New York and presented the check to the Swiss Bank in Rockefeller Center. It was there dishonored and the payees were advised that the check was 'no good'. The respondent then delivered the check to Fields for disposition.

Fields engaged a Columbia attorney to collect the check. The attorney, on May 15, 1967, deposited the check, the same bearing the endorsement for the respondent and Fields, in his attorney account, and on May 25, 1967, he paid over from his account to Fields the sum of $6,600.00. Fields established a new account in his own name in the appellant bank. On May 31, 1967, in payment of his indebtedness to the respondent, Fields purchased from the appellant bank a cashier's check in the amount of $1,000.00 and delivered the same to the respondent. The respondent cashed the check at the Washington Street office of the appellant.

Subsequently, on or about June 12, 1967, the Swiss Bank check, in the amount of $7,000.00, was dishonored and returned to the appellant. Thereafter, on June 16, 1967, Roy S. McBee, an assistant vice-president of the appellant, called the respondent at his office in North Augusta, South Carolina, advising him that the check had been dishonored and demanding that he come to the bank in Columbia. The respondent testified that during the course of this conversation that McBee said: 'We have a $7,000.00 check over here that you and Fields are trying to swindle us out of.' And further said: 'Well, you get over here or we will have you arrested over there.' The respondent picked up Fields and came to Columbia on the same day. When the respondent arrived at the bank he inquired as to the whereabouts of Mr. McBee and was directed to his open cubicle-like office located at the rear of the bank lobby. The respondent testified that after he and Fields were seated in the office that McBee then made the alleged slanderous statement: 'Who are you trying to swindle? What do you think you are trying to do?' And, 'Who in the hell are you trying to swindle with a $7,000.00 worthless check?' The respondent testified that at the time the aforesaid statement was made that McBee was in a rage and 'he kept shouting and hollering and going on and he got up in his chair and stood up behind his desk, * * *.'

There is testimony that the appellant operates a large bank with many customers entering and leaving its lobby each day and the conversation between McBee and the respondent occurred on the day of the week of the heaviest customer traffic and at the busiest hour of that day. The respondent testified as to the presence of third parties in the bank at the time of the alleged slanderous statement made by McBee as follows:

'Q. Now, going back to the episode at the bank with Mr. McBee, were there customers around at all times within earshot of the conversation when it took place?

'A. Yes, there was.

'Q. Do you know whether or not they heard it?

'A. I know they did because they were looking, they couldn't help it.

'Q. Did you know any of the people that were there?

'A. No, sir. I don't know anyone in Columbia.'

McBee denied making the alleged slanderous statement and speaking to the respondent in a loud and angry voice. He said that he did not notice any people around his cubicle at the time of his conversation with the respondent. A teller, occupying a cage within two feet of the office of McBee, testified that she knew that the respondent and another person were in the office of McBee but that she did not overhear any of the conversation that took place between the parties nor did she notice anything unusual in connection with the conversation. There was also testimony given by a Mr. King, an assistant vice-president, who was present during a part of the conversation between McBee and the respondent, and he denied hearing the statement attributed to McBee by the respondent. There was a conflict of testimony as to whether the alleged slanderous statement was made and this was an issue properly submitted to the jury for determination.

It is the position of the appellant that the trial judge was in error in not concluding, as a matter of law, that no reasonable inference could be drawn from the evidence that there was a publication of the slanderous statement.

The burden of proof was upon the respondent to show not only that the statement was made, but that such was communicated or published to some third person. Tucker v. Pure Oil Co., 191 S.C. 60, 3 S.E.2d 547. We held in Tobias v. Sumter Telephone Company, 166 S.C. 161, 164 S.E. 446, that publication of the slanderous statement may be established by the positive testimony of a person to the effect that the slanderous remarks were heard by him or,

'* * * by evidence tending to show that third persons were present and near enough at the time to hear the words spoken. And evidence of the latter class would be sufficient to take the case to the jury for them to say whether the words spoken were heard by the third person present, even though such person should deny having heard them.'

In Pelot v. Davison-Paxon Co., 218 S.C. 189, 62 S.E.2d 92, this court followed the rule announced in the Tobias case and held that when a third person was present and could have heard the slanderous statements made, even though such third person denied hearing the statements, it became a question for the jury. In the instant case the respondent relied upon circumstantial evidence to prove the fact of publication. He testified that there were customers of the bank around at all times and near enough to hear what was said. Under the testimony in this case and the rule stated we do not think the trial judge erred in his refusal to hold, as a matter of law, that there was no publication of the slanderous statement. This question was properly submitted to the jury.

The appellant contends that the trial judge erred in failing to conclude, as a matter of law, that all statements made by the agent of the appellant were qualifiedly privileged and respondent failed to prove actual malice necessary to destroy such privilege. In Conwell v. Spur Oil Co., 240 S.C. 170, 125 S.E.2d 270, we defined qualified privilege as follows:

'* * * A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The...