Green v. Smith

• Decision Date: 20 February 1929
• Docket Number: 12598.
• Parties: GREEN v. SMITH et al.
• Court: South Carolina Supreme Court

147 S.E. 333

149 S.C. 303

GREEN v. SMITH et al.

No. 12598.

Supreme Court of South Carolina

February 20, 1929

Appeal from Common Pleas Circuit Court of Sumter County; W. H Townsend, Judge.

Action by J. T. Green against W. D. Smith and others. From an adverse judgment, defendant named and others appeal. Affirmed.

The charge to the jury, exceptions, and order of the circuit judge refusing the motion for new trial were as follows:

Judge's Charge to the Jury.

"Mr Foreman and Gentlemen of the Jury:

"The plaintiff is asking for damages against the defendants on the ground that the defendant Smith was the agent of the defendant Life & Casualty Insurance Company of Tennessee and as such agent, and acting in the scope of his authority and agency, and for the purpose of injuring plaintiff in his business as an insurance agent, and to have revoked his license to act as an insurance agent in the same section of the State in which both plaintiff and said defendants were competitors, seeking to insure certain of the public, in order that defendants might put and keep plaintiff out of the insurance business, and take over his business for themselves, and in furtherance of the business of the Life & Casualty Insurance Company, began circulating among certain policyholders, whose policies had been theretofore written by plaintiff in the Life & Casualty company, and maliciously induced some of such policyholders to sign affidavits, which the defendants knew were false to the effect that plaintiff was making false statements to such policyholders, charging the Life & Casualty Insurance Company with robbing its policyholders, and stating that its rates were too high, and that its employés were dishonest, and that the plaintiff could not sleep at night for thinking about the policies he had sold for said Life & Casualty Insurance Company; and that all the statements in said affidavits concerning plaintiff were false, that defendants knew they were false, and maliciously obtained and used said false affidavits for the purpose aforesaid, and for the purpose of injuring the plaintiff in his business; and plaintiff further claims that defendants, by the malicious use of said false affidavits, has injured plaintiff by preventing him from obtaining employment as an insurance agent, and has caused him loss of time and labor in defending himself against such charges before the Insurance Commissioner; and has caused him physical injury and mental worry and anxiety connected therewith and growing out therefrom.

"The case has been dismissed as against the Durham Life Insurance Company, and you are to try it only as against the defendants, Smith and the Life & Casualty Company of Tennessee.

"The defendants Smith and the Life & Casualty Company admit that the latter is and was an insurance company, and that Smith was its Superintendent and agent residing in Sumter, and deny the other allegations of the complaint, and further answering the complaint, said defendants allege: (Reading paragraph two and three of amended answer.)

"The plaintiff is not claiming any damages on the ground that he has been libeled by either of the defendants, so you need not consider whether or not plaintiff has been libeled; no damages are to be allowed in this action on account of a libel.

"Any malicious interference with the business or occupation of another, if it is the proximate cause of damage, is an actionable wrong. Such interference may be by a single individual or corporation, or by a number of individuals or corporations conspiring together, but it is the injury or damage maliciously caused, which constitutes the gist of the action; and not the conspiracy, the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. The claim of the plaintiff is based on a wilful or wanton or malicious tort, and the plaintiff should not recover any damages unless he has proven by the greater weight of the evidence that he has been injured as alleged in the complaint by one or the other of said two defendants wilfully or wantonly or maliciously procuring from Celia Butler or Abe Butler one or both of the affidavits purporting to be signed by each of them, which have been introduced in evidence and that he or it knew at the time he or it took such affidavit that the statement contained therein was false, and that the person signing such affidavit as affiant did not know the contents thereof and was not swearing to the statements therein contained as the truth; and by defendants maliciously using such false affidavit in a proceeding before the Insurance Commissioner for the purpose of procuring the revocation of plaintiff's license as an insurance agent.

"An insurance company has an absolute right to decline or refuse to employ anyone seeking employment, but it has no right to wilfully or wantonly or maliciously do a wrongful and malicious act to prevent an applicant for employment from obtaining employment by another. Every person has a right to seek employment, and to follow any occupation for which he may be fitted without malicious interference from anyone else. No combination of persons or corporations have a right maliciously to deprive another person of the right of making a living or pursuing a business for which he is fitted. An act is malicious when it is done with conscious knowledge of another's right, and with an intent knowingly and consciously to interfere therewith. It is a wanton and conscious and intentional interference with the known rights of another. Malice in law means a deliberate purpose to injure another without just cause or excuse--an intention to wrong another unjustly. A wilful act is one done intentionally in violation of the known rights of another. A wanton act is one done in conscious disregard to the known rights of another or to the probable effect of such wrongful act upon others or their rights. No one has a right to injure another in the exercise of his right to obtain employment, unless he can show that his own legitimate interest requires such action. No man or corporation can justify a malicious interference with another man's business by or through false representations, wilfully and maliciously made.

"A conspiracy is a combination of two or more persons or a person and corporation by concerted action to accomplish an unlawful purpose or wrong, or some purpose not in itself wrong or unlawful by the use of wrongful and unlawful means. If two or more persons or a person and a corporation enter into an agreement or understanding, express or implied, to wrongfully injure another person, to prevent his obtaining employment by those who may wish to employ him, or to wrongfully cause a license to do business held by him to be revoked, between two or more persons or a person and a corporation, such agreement or understanding would be a conspiracy. A single person, no matter how many corporations he may represent, cannot conspire with himself alone as an individual, so as to make any company he represents liable because of a conspiracy. In other words, there must be more than one mind actually engaged in such conspiracy. A single agent cannot conspire with himself as an individual so as to make him and the corporation represented by him, guilty of a conspiracy; and plaintiff now admits that no conspiracy by defendants has been proven in this case. It does not necessarily follow, however, that a failure on the part of the plaintiff to produce evidence of, or to prove, a conspiracy entitles the defendant to a verdict; for a corporation would be liable for the wrongful and malicious act of any one of its agents and servants, while acting as such agent in the scope of its actual authority and agency, and in the furtherance of its business, if such malicious act caused injury to another. Knowledge of an agent is in law knowledge of and notice to his principal, or to the company employing him as its agent. Notice to an agent or to a corporation employing such agent, which, if pursued, would have led to actual knowledge, charges a corporation with knowledge.

"As a general rule averment and proof that an act was done in pursuance of a conspiracy does not change the nature of the act, nor add anything to its legal force or effect. If a plaintiff fails to prove a conspiracy or concerted design, he may yet recover damages against one or more of the defendants, if such defendant or defendants is shown by evidence to be guilty of doing a malicious wrong to the plaintiff without such agreement, concerted action or conspiracy. The charge of conspiracy, if unproven, may be considered as mere surplusage, and not necessary to be proven; if it should be proven that the defendant Smith, while acting in the scope of his authority as agent of the defendant Life & Casualty Company of Tennessee, and, in furtherance of its business, maliciously procured false affidavits to be made by either Celia or Abe Butler, and knowing such affidavits to be false, maliciously used them to procure a revocation of plaintiff's license as an insurance agent by the Insurance Commissioner. It would not be either unlawful or a wrong for an insurance company to decline or refuse to employ, in the same territory in which he had been employed by another company, one who had recently been in the employ of another, until after the lapse of six months from the time he quit the former employment, if it deemed such employment within such limited period detrimental to its business; and even if an agreement has been proven between two or more insurance companies not to employ former employés of the different companies in the same territory within six months after such employment ended, it would be perfectly legal and could create no

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