Imerritt v. Great Atl. & Pac. Tea Co

• Court: South Carolina Supreme Court
• Writing for the Court: BONHAM
• Citation: Imerritt v. Great Atl. & Pac. Tea Co, 179 S.C. 474, 184 S.E. 145 (S.C. 1936)
• Decision Date: 04 March 1936
• Docket Number: No. 14246.,14246.
• Parties: IMERRITT . v. GREAT ATLANTIC & PACIFIC TEA CO.

184 S.E. 145

IMERRITT .

v.GREAT ATLANTIC & PACIFIC TEA CO.

No. 14246.

Supreme Court of South Carolina.

March 4, 1936.

Appeal from Greenville County Court; John L. Plyler, Judge.

Action by Curtis Merritt, by his Guardian ad Litem, M. S. Merritt, against the Great Atlantic & Pacific Tea Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Price & Poag, of Greenville, for appellant.

J. Robert Martin, of Greenville, for respondent.

BONHAM, Justice.

This is an action for damages for slander. The complaint alleges that the plaintiff bought a sack of flour at one of the defendant's stores, and when he left with the flour a clerk of the defendant followed him to another store and there accused him of stealing the flour by publicly uttering the words "you got to come and show the clerk you bought the sack of flour from, " meaning thereby that he had stolen the flour, which caused him much embarrassment, humiliation, worry, and injury, to his damage in the sum of $3,000. The testimony discloses that the plaintiff, a boy of fifteen years of age, bought a sack of flour at one of defendant's stores and carried it unwrapped to another store nearby where his father worked. Boyd, a clerk for the defendant, seeing the plaintiff leaving the store with the unwrapped package, asked him from whom he bought it, and he indicated a clerk in the rear of the store, and when the clerk whom Boyd thought the plaintiff had indicated denied that he had sold the flour, Boyd followed the plaintiff to the store to which he had gone and there spoke the words complained of in the presence of the plaintiff and his father; and they testify that, in addition, he expressly Charged the plaintiff with stealing the flour.

The plaintiff returned with Boyd to defendant's store, there identified the clerk from whom he bought the flour, who acknowledged the sale; plaintiff returned the flour, secured a refund of his money, left, and soon thereafter brought this action, which resulted in a verdict for him for $500 punitive damages. From which the defendant appeals on ten exceptions.

The first and third exceptions are to remarks of plaintiff's counsel made in cross-examination and argument. In the cross-examination of the defendant's witness, Boyd, plaintiff's counsel said to him "be frank, " to which defendant's counsel objected as an intimation that the witness was not frank, and therefore improper. The court did not rule on the objection. In his argument plaintiff's counsel said that the defendant was a foreign corporation, and if the suit had been for more than $3,000 it would have been removed to the federal court where it would not have been worth 2 cents, and appealed to the jury to give a verdict against "this foreign corporation." At the conclusion of the argument, defendant's counsel objected to the statement and asked the court to reprimand plaintiff's counsel for making it, and the court said that it would charge the jury that it should not be influenced by the fact that defendant was a foreign corporation, and did charge that they were not to try the case on account of bias, prejudice, or sympathy for or against either party. Both statements were improper, and the court should have reprimanded counsel and instructed the jury to disregard them, but the exception to the statement of the witness is not well taken, for the court did not rule on the objection (White v. Southern Ry. Co., 142 S.C. 284, 140 S.E. 560, 57 A.L.R. 634), and the statement made in argument told the jury only what they had heard when the pleadings were read and knew as a matter of law, and the charge was sufficient to remove any bias, prejudice, or sympathy created by the statement. The regulation of matters of this kind that occur in the course of the trial are within the discretion of the trial judge, and here no abuse of that discretion sufficient to warrant a reversal is shown.

The fourth exception is to the charge that one cannot by a question invite a slanderous remark and then bring a suit for the slander, the alleged error being that the charge was not responsive to any issue and was prejudicial. The plaintiff and his fa ther testified that the clerk, in answer to a question by the father, said, speaking to the plaintiff, "you just stole it, " and, to the father, "he stole a sack of flour, " and the plaintiff presumably requested the charge to explain why the complaint was on a statement the meaning of which must be explained by innuendo and not on the direct charge of larceny. It was a correct statement of law (Boling v. Clinton Cotton Mills, 163 S.C. 13, 161 S.E. 195), and was responsive to an issue.

The fifth exception is to the charge that two cases cannot be tried together without the consent of the parties, and that the only reason evidence of another case was admitted was on the question of how it may affect the witness, the alleged error being that the charge was confusing and improper, as defendant had a right to bring out the facts of another suit growing out of the same transaction to show the interest and bias of the plaintiff and his father. On cross-examination of them, it was shown that another suit by plaintiff against the defendant for damages for an...