Jenkins v. Southern Ry. Co.

• Decision Date: 13 December 1924
• Docket Number: 11630.
• Citation: 125 S.E. 912,130 S.C. 180
• Parties: JENKINS v. SOUTHERN RY. CO. ET AL.
• Court: South Carolina Supreme Court

125 S.E. 912

130 S.C. 180

JENKINS v. SOUTHERN RY. CO. ET AL.

No. 11630.

Supreme Court of South Carolina

December 13, 1924

Appeal from Common Pleas Circuit Court of Barnwell County; Hayne F Rice, Judge.

Action by B. M. Jenkins against the Southern Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Watts J., dissenting in part.

Fraser J., dissenting.

Harley & Blatt, of Barnwell, for appellants.

Holman & Boulware and Brown & Bush, all of Barnwell, for respondent.

COTHRAN J.

Action for $20,000 damages on account of the alleged malicious slander of the plaintiff by the defendant Cooper, station agent of the defendant railway company at Kline, S.C. Verdict in favor of the plaintiff for $2,000 against the railway company and $150 against the agent. Both defendants have appealed.

The circumstances out of which the alleged slander arose were as follows:

During the watermelon season of 1922 the railroad company refused to accept such shipments unless the freight was prepaid, or a bond put up by the consignor for the freight. The plaintiff had a shipment to make, but was not prepared to prepay the freight, and had no bond up with the agent at Kline, S.C. He had made arrangements with one Rizer to make shipment under his name and under the bond which Rizer had put up. Accordingly the agent prepared an order for Rizer to sign, authorizing this arrangement. The plaintiff had Rizer to sign it in the presence of a witness, Brabham, and presented it to the agent. It appeared from the testimony that the order was signed and witnessed by plaintiff and Brabham, on the fender of an automobile, and on that account did not appear to the agent to be genuine. The agent then said to the plaintiff, in the presence of others, that neither signature was genuine; that they were both written by the same man; and that the handwriting was that of the plaintiff. The agent then refused to accept the order or to make the shipment. A wordy altercation ensued, the agent returning to his office for a pistol and the plaintiff retiring to his place of business for similar armament. The affair blew over, however, and this suit resulted in the nature of a safety valve.

At the close of the testimony the defendant company moved for a directed verdict in its favor, upon the ground that the agent was not, at the time of the alleged slander, acting within the course of his employment. The motion was refused.

After the rendition of the verdict, the defendants moved for a new trial upon the ground that the verdict was inconsistent being $2,000 against the master and $150 against the servant, whose act was the basis of the cause of action. This motion was also refused.

During the trial certain witnesses were allowed to testify, over the objection of the defendants, that they understood from the language used by the agent that he intended to charge the plaintiff with having forged Rizer's name to the order.

The exceptions raise three questions:

1. Did the circuit judge commit error in allowing the testimony of bystanders that they understood from the language used by the agent that he intended to charge and did charge the plaintiff with having forged Rizer's name to the order?

As to the first question: In Morgan v. Livingston, 2 Rich., 573, quoted with approval in Zimmerman v. McMakin, 22 S.C. 372, 53 Am. Rep. 720, the court said:

"It is not necessary that the words, in terms, should charge a larceny. If, taking them altogether, in their popular meaning, such is the necessary inference, then there is no doubt that they are actionable."

But, assuming that the words alleged to have been used by the agent are not upon their face actionable as charging directly or by necessary inference the crime of forgery, in the case just cited it is held that, if the meaning of the words used be doubtful and ambiguous, the plaintiff has the right to inquire of bystanders how they understood them, quoting the following from Davis v. Johnston, 2 Bailey, 579:

"The rule in verbal slander, as to the construction of words, is, that they are to be understood in their ordinary and popular meaning. 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 the 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."

See, also, Hubbard v. Furman, 76 S.C. 510, 57 S.E. 478.

As to the second question: It appears beyond controversy that the alleged slander, if committed, was committed by the agent in the direct course of his employment. The question is concluded by the cases of Nunnamaker v. Smith, 96 S.C. 294, 80 S.E. 465; Hypes v. R. Co., 82 S.C. 315, 64 S.E. 395, 21 L. R. A. (N. S.) 873, 17 Ann. Cas. 620; Courtney v. Exp. Co., 120 S.C. 511, 113 S.E. 332, 24 A. L. R. 128; Graham v. Ry. Co., 89 S.C. 1, 71 S.E. 235.

As to the third question: It is unquestionably settled by the decisions of this court and the Supreme Court of the United States that an action against a master, upon his imputed liability for the negligence or willful act of his servant, committed within the course of his employment, and against the servant, upon his personal liability for the act, does not present a separable controversy, but that the two may be united as defendants under an allegation of joint and concurrent tort. Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131, 21 S.Ct. 67, 45 L.Ed. 121; Nunnamaker v. Smith, 96 S.C. 294, 80 S.E. 465; Schumpert v. R. Co., 65 S.C. 338, 43 S.E. 813, 95 Am. St. Rep. 802; Carson v. R. Co., 68 S.C. 55, 46 S.E. 525, affirmed 194 U.S. 136, 24 S.Ct. 609, 48 L.Ed. 907; Alabama R. Co. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann. Cas. 1147; Cin. & T. P. R. Co. v. Bohon, 200 U.S. 221, 26 S.Ct. 166, 50 L.Ed. 448, 4 Ann. Cas. 1152.

The question is, does this situation present such a case as will authorize a verdict against the master for a certain amount and against the servant for a certain amount, in other words, a several verdict?

The overwhelming weight of authority sustains the proposition thus announced in the case of Washington Gas Light Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543:

"The plaintiff in bringing his action saw fit to join the gas company and several of its officers as individual defendants. He could, had he so chosen, have brought his action against the company alone. All the defendants joined in a plea of not guilty, and the jury could not find a verdict of guilty against all, and apportion the damages among the several defendants by giving a certain amount as against the company and a certain other amount as against the individual defendants. Those of the wrongdoers who are sued together and found guilty in an action of tort are liable for the whole injury to plaintiff, without examining the question of the different degrees of culpability."

See, also, supporting this rule, Cooley, Torts, 133, 135, 136; Currier v. Swan, 63 Me. 323; Berry v. Fletcher, 1 Dill. 67, Fed. Cas. No. 1357; Pardridge v. Brady, 7 Ill.App. 639; McCarthy v. De Armit, 99 Pa. 63; McCalla v. Shaw, 72 Ga. 458; Hunter v. Wakefield, 97 Ga. 543, 25 S.E. 347, 54 Am. St. Rep. 438; Crawford v. Morris, 5 Grat. (Va.) 90; McCool v. Mahoney, 54 Cal. 491; Cole v. Roebling, 156 Cal. 443, 105 P. 255; Lynch v. Chicago, 152 Ill.App. 160; Whitaker v. Tatem, 48 Conn. 520; Layman v. Hendrix, 1 Ala. 212; Glore v. Aken, 131 Ga. 481, 62 S.E. 580; Hall v. McClure, 112 Kan. 752, 212 P. 875, 30 A. L. R. 782; Forseland v. Swenson (Neb.) 192 N.W. 649; United Workers v. Coal Co., 258 F. 829, 169 C. C. A. 549; Lake Erie, etc., Co. v. Halleck, 78 Ind.App. 495; 136 N.E. 39; Deputy & Co. v. Hastings (Del. Super.) 123 A. 33; Gonsalves v. Baptiste (R. I.) 122 A. 340.

In a very early case, however, in this state, White v. McNeily, 1 Bay, 11, decided in the superior court at Georgetown, in April, 1784, it was decided that, where there were joint trespassers, a jury may sever damages and apportion them according to the degree and nature of the offense committed by each offender. In a note to this case prepared in 1806 it is stated that the rule announced had been followed up to that time, and "may be considered as a part of the common law of South Carolina."

In the Lansden Case, supra, the Court, after announcing the rule, stated: "The rule is different in South Carolina, where the jury can apportion the damages among the different defendants found guilty. It is acknowledged to be a departure from the rule at common law. White v. McNeily and others, 1 Bay, 10, 11."

The case of White v. McNeily was followed in a decision of the lower court at Camden, also in April, 1784, Whitaker v. English, 1 Bay, 15, where it is said:

"Wherever men go to do an unlawful act of this kind, all and every of them are liable to the full extent; though where several are sued, a jury may apportion as they think just and proper."

In Bevin v. Linguard, 1 Brev. 503, 2 Am. Dec. 684, it was decided upon the authority of White v. McNeily that in an action against several defendants for a joint trespass the jury may apportion the damages according to the different degrees of guilt of the trespassers.

In Smith v. Singleton, 2 McMul. 184, 39 Am. Dec. 122, Judge O'Neall, referring to the order decisions, says:

"It is true, we early departed from the English rule that in a joint action of trespass the jury cannot sever in their damages. The case of White v. McNeily, in 1784, ruled that the jury in such a case might sever and apportion the damages according

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