Lily v. Belk's Dept. Store

• Decision Date: 02 December 1935
• Docket Number: 14182.
• Citation: 182 S.E. 889,178 S.C. 278
• Parties: LILY v. BELK'S DEPARTMENT STORE.
• Court: South Carolina Supreme Court

182 S.E. 889

178 S.C. 278

LILY v. BELK'S DEPARTMENT STORE.

No. 14182.

Supreme Court of South Carolina

December 2, 1935

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by Mrs. Eva Lily against Belk's Department Store. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas Lumpkin & Cain, of Columbia, for appellant.

C. T Graydon and W. M. Easterling, both of Columbia, for respondent.

STABLER Chief Justice.

This is an action for damages on account of certain alleged slanderous words spoken of and concerning the plaintiff by an agent of the defendant. The delict charged is set out in the complaint as follows: "That, heretofore, on or about the 11th day of November, 1933, this plaintiff went into the basement of the defendant corporation and purchased certain goods to the value of seventy-nine ($0.79) cents, and she with her husband left the establishment, or place of business of the defendant, and upon reaching Main street, on which defendant's place of business is situated, they were stopped by a clerk named Mr. Carter, an agent and servant of the defendant, who at said time and place acting for the defendant, told this plaintiff to stop, and caught hold of this plaintiff and told her that 'he wanted to see what she had put in those bags, or packages,' and proceeded to search this plaintiff's bags, or packages, in the presence of people on the street."

It was also alleged that the attitude and acts of the defendant's agent, in the presence of numerous persons were "intended to and did accuse this plaintiff of stealing something from the store," and were malicious and willful and held her up to public ridicule and scorn; and that such "accusations were false and untrue." The defendant's answer was a general denial.

On trial of the case, motions for a nonsuit and for a directed verdict were refused, and the jury found for the plaintiff $1,500 actual damages; the court having withdrawn from them the issue of punitive damages. A motion for a new trial and for a reduction of the verdict, made on the ground that the amount awarded was "exorbitant and excessive," was also refused.

The appeal presents four questions for decision: (1) Was the court in error in refusing to grant a nonsuit or to direct a verdict? (2) Were the words alleged to have been spoken actionable in the circumstances surrounding their utterance? (3) Did Judge Whaley commit error in refusing to charge the defendant's third request? (4) Was the verdict excessive under the facts of the case? These we will consider in the order named.

First. The motion for a nonsuit was made on the ground that the testimony offered by the plaintiff was insufficient to constitute or support a cause of action for slander, as the language used did not charge the plaintiff with a crime and did not become actionable by virtue of the circumstances under which the statement was made.

We think the motion was properly overruled. The plaintiff testified that she and her husband and daughter, on November 11, 1933, went into the basement of Belk's Department Store in the city of Columbia, and that she there purchased a pair of overalls and her husband bought a work shirt; that these goods were wrapped separately, and she took one of the packages and her husband the other, and they went upstairs and out of the front door to the street; that on reaching the street she heard some one behind them say, in a rather high tone of voice, "wait there"; that she recognized this person as the clerk who had served them in the store; and that he ran up to them and "grabbed" her husband's package and tore it open, and found only the work shirt. She then testified: "I asked him what he was looking for when he tore my husband's package open, and he said, 'I want to see what you put in those packages,' and I said, 'Nothing, only what you sold us and wrapped up to give us,' and he took my package and tore the paper from around it like this (indicating) and handed it back to me and said: 'You all go ahead. We missed something out of the store and thought you all got it." D' She further stated that he "acted as if he thought we had stolen something out of the store and put it in those packages," and that all of this happened in the presence of her husband and daughter and in the presence of others who were nearby, and that it so unnerved and embarrassed her that she did not know what to do. The plaintiff's husband and daughter corroborated the statements of Mrs. Lily as to what was said and done by the defendant's agent.

In Odgers on Libel and Slander (1st Am.Ed.) 116, we find: "It is not necessary that the defendant should, in so many words, expressly state the plaintiff has committed a particular crime. * * * Any words which distinctly assume or imply the plaintiff's guilt, or raise a strong suspicion of it in the minds of the hearers, are sufficient."

In Davis v. Johnston, 2 Bailey, 579, the court said: "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 innocent, 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."

See, also, Williamson v. Askin & Marine Co., 138 S.C. 47, 136 S.E. 21; McClain v. Insurance Co., 150 S.C. 459, 148 S.E. 478; Norman v. Stevenson Theatres, 159 S.C. 191, 156 S.E. 357; Palmerlee v. Nottage, 119 Minn. 351, 138 N.W. 312, 42 L.R.A. (N.S.) 870.

In the last-named case, the Minnesota court observed: "A charge need not be made directly-indeed, the venom and sting of an accusation is usually more effective when made by insinuations. The floating calumny which each reader may affix to any and every official act which his aroused suspicion may lay hold of is capable of inflicting graver injury and injustice than a direct, specific charge, which may be squarely met and refuted, if untrue."

In the light of these principles, and the testimony above detailed, it is clear that there was no error as complained of.

A directed verdict was asked for on two grounds, the first of which is disposed of by what has been said in our discussion of the Court's refusal to grant a nonsuit. The second was as follows: That "the words...