Leevy v. North Carolina Mut. Life Ins. Co.

• Decision Date: 04 June 1937
• Docket Number: 14492.
• Parties: LEEVY v. NORTH CAROLINA MUT. LIFE INS. CO. et al.
• Court: South Carolina Supreme Court

191 S.E. 811

184 S.C. 111

LEEVY v. NORTH CAROLINA MUT. LIFE INS. CO. et al.

No. 14492.

Supreme Court of South Carolina

June 4, 1937

Appeal from County Court of Richland County; A. W. Holman, Judge.

Action by I. S. Leevy against the North Carolina Mutual Life Insurance Company and another. From a judgment for plaintiff defendants appeal.

Affirmed.

N. J Frederick, of Columbia, for appellants.

Edwin H. Cooper, J. Hughes Cooper, and A. F. Spigner, all of Columbia, for respondent.

FISHBURNE Justice.

This is an action for the recovery of damages for slander, brought by I. S. Leevy against North Carolina Mutual Life Insurance Company and W. H. Harvey. There was a verdict and judgment in favor of the plaintiff against the defendants for actual damages in the sum of $2,000, and the cause is before us on appeal from this judgment.

At the time of the trial, and for several years prior thereto, the plaintiff owned and operated in the city of Columbia an undertaking establishment for negroes. The defendant W. H. Harvey is the district manager of his codefendant. It is alleged that while acting within the scope of his agency and authority as manager of the insurance company in the city of Columbia, and while in the active discharge of its business, he willfully and maliciously slandered the plaintiff by stating that the plaintiff was a crook and a thief; that he was not straight in his business, and had been cheating people for years; that these statements were made in the presence of a third person, who was a customer of the plaintiff's undertaking business; and that such statements humiliated the plaintiff, and damaged his reputation and standing in the community, as well as his business from which he derives a livelihood. It is alleged that the statements were made in the office of the defendant in the city of Columbia, and were accompanied by threats on the part of the defendant Harvey, who intimidated the plaintiff with a pistol, and drove him from the office.

These allegations find support in the testimony.

The defendants generally denied the material allegations of the complaint, and alleged that the allegedly objectionable words were not only qualifiedly privileged, but were justified, and pleaded facts tending to show mitigation.

In his testimony, the defendant Harvey admitted that he made the following statements concerning the plaintiff, in the presence of the customer: "He doesn't act straight in all of his business dealings"; "Leevy, I have to do this, because you haven't always dealt straight with the assignments (policy assignments) with us, and I must know these are legitimate assignments"; "I told him that he hadn't dealt straight with his assignments with the North Carolina Mutual Life Insurance Company."

In explanation of the reference made to policy assignments, the testimony shows that it was the custom and practice of the plaintiff to obtain from the beneficiary an assignment to him of the policy of insurance carried on the life of the deceased whom he was employed to bury. These policies were usually small in amount, and after the assignments were made and the burial effected, the policies would be taken to the office of the defendant by the plaintiff for the purpose of collecting the proceeds thereof, in payment of his bill for services rendered.

By way of justification, the defendants alleged and attempted to prove several instances in which the plaintiff had attempted to obtain money on fraudulent assignments in connection with his business, and charged that the plaintiff had defrauded the Victory Savings Bank of Columbia, a negro institution, and a number of other creditors when formerly conducting a mercantile business.

The testimony in the case is quite lengthy, and the examination of witnesses protracted.

The particular occasion upon which the alleged slander was uttered came about when the plaintiff went to the office of the defendants, accompanied by a negro woman, Mary Kincaid Wright (who had employed him to conduct her mother's funeral), in the effort to straighten out and collect an insurance policy on the life of her mother, which had been assigned to the plaintiff by the daughter and several nieces and nephews of the deceased. At the trial, Mary Kincaid Wright testified that on this occasion Harvey told her that he would not pay the money to Leevy, but would pay it to her; that he wished to know her reasons for assigning the policy to the plaintiff, and she told him that she desired Leevy to have the money in payment for his services; that during this conversation between her and Harvey the plaintiff attempted to interrupt, and the defendant pointed his finger at him and said, "Shut up, I am not talking to you because you are a crook, and you are not straight."

The defendants complain because counsel for the plaintiff, over objection, were permitted to go too far afield in their cross-examination of the defendant W. H. Harvey, and in so doing were allowed to make an improper and irrelevant attack upon his character in the effort to discredit him.

The question arose in this way: The defendant Harvey was president of the Victory Savings Bank, in 1931, which bank, like a great many others at that time, was found to be in financial difficulties. Counsel for the defendants, during the course of this examination, objected to questions relating to Harvey's connection with the bank, upon the ground that they reflected on the bank, which is not a party to this action. The trial judge struck out the testimony relative to the bank which was not relevant and responsive to the issues made in the case. The appellants then raised the issue that such examination was improper as an attack upon the character of the defendant Harvey, and irrelevant. But counsel overlook the fact that when the plaintiff's attorneys claimed the right to discredit the witness, if they could, by reason of his conduct of the affairs of the bank, the defendant's counsel said, "If you can, that's all right." In addition to this, the record discloses that this witness himself, on his direct examination, by his own testimony, put his reputation and character in issue.

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