Herring v. Lawrence Warehouse Co.

Decision Date19 August 1952
Docket NumberNo. 16660,16660
Citation72 S.E.2d 453,222 S.C. 226
CourtSouth Carolina Supreme Court

Irvine F. Belser, Irvine F. Belser, Jr., Walter J. Bristow, Jr., Columbia, for appellant.

Wise, Whaley & McCutchen, Columbia, for respondent.


The appellant was employed as warehouse manager by the respondent in the City of Columbia, and as such it was his special duty to have the custody and control of certain farm machinery and other property. He was discharged on or about September 30, 1947. Following his discharge, he served an amended complaint containing two causes of action: (1) That the respondent had libeled and slandered him by written communications and by oral charges as being 'short' with reference to certain farm machinery which had been entrusted to his care; and (2) That the respondent through its agent, Mr. Payne, had committed an assault and battery upon him at the time of his dismissal by grasping his arm in an angry manner when demanding the keys to the warehouse in which the machinery had been kept.

To the first cause of action the respondent pleaded (1) a general denial, and (2) qualified privilege. A third defense was set up. As to this defense, respondent construes it as being one of justification, and the defendant as merely mitigation. The answer also alleged two defenses to the second cause of action (assault and battery): (1) a general denial, and (2) the plea that the cause of action came exclusively within the terms of the South Carolina Workmen's Compensation Act.

Numerous exceptions have been filed by appellant assigning error to the trial court in the instructions given to the jury. In his initial charge to the jury, the trial judge charged:

'The plaintiff must satisfy the jury by the greater weight of the evidence that such statement was false. If the statement was true, why the case falls down. He must prove that the statement was false.'

Several times during the remainder of the charge, the trial judge instructed the jury to the same effect, that is, to establish a case of libel and slander, the plaintiff must prove that the statement was false.

The record shows that Mr. Payne, who was employed by respondent as auditor, had made an inventory of the machinery in respondent's warehouse, and immediately after so doing summoned appellant and accused him of being short three mowers and one harrow. This accusation was repeated more than once in the presence of various persons, and was followed immediately, as stated, by appellant's discharge and the demand for the warehouse keys. Payne not only directly charged appellant with this shortage in the machinery which had been entrusted to his care as warehouse manager, but at the same time, he told other persons that he had made an audit and that the shortage as claimed existed. He repeated, 'Mr. Herring is short.'

It is well settled in South Carolina that statements which are actionable per se are presumed false. White v. Southern Oil Stores, 198 S.C. 173, 17 S.E.2d 150; Lily v. Belk's Department Store, 178 S.C. 278, 182 S.E. 889.

Appellant contends that the defamatory statements uttered by respondent's agent, Mr. Payne, were slanderous per se, and for this reason no burden was cast upon appellant to prove their falsity. Respondent on the other hand, argues that the words are susceptible of two meanings: one, actionable per se; the other innocent.

We stated in Smith v. Smith, 194 S.C. 247, 9 S.E.2d 584, 589:

'If words are susceptible of two meanings, one imputing a crime, and the other innocence, the latter is not to be adopted, and the other rejected, as a matter of course. In such a case, it must be left to the jury to decide in what sense defendant used them. Their conclusion must be formed from the whole of the circumstances attending the publication, including the sense in which the witnesses understood the words.'

The Court went on to say in the Smith case:

'The rule for which appellant contends is applicable where the meaning of the words used are doubtful and ambiguous and are susceptible of two meanings. In the case at bar, the words are plain and unambiguous, and the principle announced in Milam v. Railway Express Agency, 185 S.C. 194, 193 S.E. 324, 113 A.L.R. 667, applies.' Williamson v. Askin & Marine Co., 138 S.C. 47, 136 S.E. 21.

In our opinion, the defamatory remarks made by Mr. Payne concerning appellant are unambiguous, and actionable per se.

When considered in connection with the fact that appellant was immediately discharged and the keys of the warehouse demanded, it is clear that appellant was charged with the commission of a crime. Since such statements were slanderous per se and therefore presumed false, there was no burden upon the appellant in the first instance to prove their falsity. Appellant had the right to rely on the legal presumption of the falsity of the defamatory matter until such presumption was overcome by testimony. White v. Southern Oil Stores, 198 S.C. 173, 17 S.E.2d 15; Pierce v. Inter-Ocean Casualty Co., 148 S.C. 8, 145 S.E. 541.

It is conceded by respondent that a plaintiff had the right to rely on the falsity of the alleged slanderous words, but such right exists only until evidence is presented to rebut such presumption, and such presumption is rebutted by evidence of qualified privilege. However, even where the defenses of qualified privilege and justification are pleaded, the burden of establishing such defenses rests upon the respondent.

As shown, the trial judge in charging the jury, placed upon appellant, this initial burden of proving that the alleged slanderous statements were false. In our opinion, this constituted prejudicial error.

We will not unduly lengthen this opinion by passing upon the exceptions assigning error to other portions of the charge given to the jury. It is unlikely that these questions will arise in another trial.

Respondent seeks to support the judgment in its favor upon several additional sustaining grounds. It is first argued that the trial court should have granted the motions made by the respondent for a nonsuit and directed verdict as to the first cause of action,--that is, libel and slander.

In the Transcript of Record, this statement is contained in the 'Agreed Statement': 'At this trial, both plaintiff and defendant offered considerable evidence in support of the allegations contained in their pleadings.'

We have given the most careful consideration to the testimony in this case--which is voluminous--, and we find no error in the action of the court in overruling the motions above referred to. There was ample evidence to go to the jury on all of the issues raised, including the defenses of qualified privilege and justification, which evidence, of course, must be viewed in the light most favorable to the appellant.

It is next argued by respondent that the Workmen's Compensation Act is the exclusive remedy of appellant under the allegations and proof of assault and battery as set forth by the second cause of action in the complaint. This issue is raised under respondent's additional sustaining grounds. When the motion for directed verdict was made upon the ground stated, it was denied by the trial judge, who held that appellant had the right to bring his common law action.

The Workmen's Compensation Act of South Carolina, original Section 11, now Code Section 7035-11, provides in part:

'The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this article respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employees * * * as against employer at common law, or otherwise, on account of such injury, loss of service, or death * * *.'

Respondent was presumptively excluded from the provisions of the Act; it had only two employees in South Carolina, and thus came within the terms of Section 7035-16(b) of the Act, which states that this article shall not apply '* * * to any person that has regularly employed in service less than fifteen employees in the same business within this State'.

Respondent, as shown by the record, elected to come under the provisions of the Act, but there is no testimony showing that it ever gave the plaintiff notice that it was covered by the Act. Nor were any signs posted by respondent to the effect that the business was operated under the provisions of the Act as required by Rule 7 of the Industrial Commission. 1942 Code, Sec. 7035-57, Rule 7.

A vital question arises: should the appellant be bound to proceed under the Workmen's Compensation Act even though the Act did not ordinarily apply to his employer, and appellant had no notice that his employer had elected to come under the Act?

Respondent contends that whether appellant knew that it was operating under the Workmen's Compensation Act, or whether respondent posted notices of such operation under the Act, is immaterial in determining whether the Workmen's Compensation Act is the exclusive remedy of appellant. To support this argument, the case of Samuel v. Appleton Co., 214 S.C. 157, 51 S.E.2d 508, is cited and relied upon. We do not think this case sustains the position taken by respondent.

Differing from the case at bar, the plaintiff in the Samuel case was suing under the Workmen's Compensation Act, and in the Samuel case the employer was not presumptively excluded from the provisions of the Act, but was included. In that suit, it was held that the employee was bound by the provisions of the Workmen's Compensation...

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26 cases
  • Mellen v. Lane
    • United States
    • South Carolina Court of Appeals
    • 11 Marzo 2008
    ...are: (1) conduct of the defendant which places the plaintiff, (2) in reasonable fear of bodily harm. Herring v. Lawrence Warehouse Co., 222 S.C. 226, 241, 72 S.E.2d 453, 458 (1952); Jones by Robinson v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (Ct.App.1995). The c......
  • Holtzscheiter v. Thomson Newspapers, Inc.
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    ...and declaring that words not actionable by their plain and ordinary meaning cannot be made so by innuendo); Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E.2d 453 (1952) (implying that actionable per se is synonymous with slanderous per se); Spigner v. Provident Life & Accident Ins.......
  • Parrish v. Allison
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    ...decided. Parrish posits the holdings of Lily v. Belk's Dep't Store, 178 S.C. 278, 182 S.E. 889 (1935) and Herring v. Lawrence Warehouse Co., 222 S.C. 226, 72 S.E.2d 453 (1952), demand the reversal of the trial court. In Lily, the plaintiff left a department store after making a purchase but......
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    ...be considered in determining whether there is a defamatory meaning and whether it is actionable per se. Herring v. Lawrence Warehouse Co., 222 S.C. 226, 235, 72 S.E.2d 453, 455 (1952) (holding that when considered in light of circumstances, employer's statement that employee was "short" was......
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