Milam v. Railway Express Agency, Inc.

Decision Date25 October 1937
Docket Number14551.
Citation193 S.E. 324,185 S.C. 194
CourtSouth Carolina Supreme Court

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

Action by R. A. Milam, doing business as the Milam Electric Company against the Railway Express Agency, Inc. From an order granting plaintiff a new trial, the defendant appeals.

Judgment affirmed, and case remanded for a new trial.

Benet Shand & McGowan, of Columbia, for appellant.

Gary Paschal and John W. Sholenberger, both of Columbia, for respondent.

STABLER Chief Justice.

This is an action for damages on account of an alleged libelous statement written and published by the defendant of and concerning the plaintiff and his business. The appeal is from an order of the county judge granting a new trial.

It appears that on September 14, 1936, a servant of the defendant went to Milam's place of business in the city of Columbia to deliver a C. O. D. package which had been shipped the plaintiff by the Majestic Metal Spinning & Stamping Company, Brooklyn, N.Y. It was discovered that the funds in the cash drawer were not sufficient to make the payment required, $23.52, and, as the plaintiff himself, the only one who could sign checks, was not present, the "package was not taken up at that time." On the following day the defendant, acting through its agent, A. D Cobb, addressed and mailed to the consignor, and was duly received by it, a postal card containing the following notation with reference to the package in question: "Is undelivered:-Reason. No funds." The complaint contains among others, the following allegations:

"That in and by the printed statement above mentioned and the publication thereof and the circumstances attending and surrounding the same, the defendant's purpose and intention was to charge and convey and did charge and convey to the public and the Majestic Metal Spinning and Stamping Company, that the plaintiff was without sufficient funds to take up the 'C. O. D.' package referred to.

That the statements and the implications contained in the above-mentioned card were absolutely false and libelous and the writing and publication thereof by the defendant, its agents and servants were done in a negligent, wanton and willfully reckless manner in total disregard of the rights of the plaintiff, his good name and reputation as an individual and as a business man."

The defendant alleged that in making its report to the consignor it "had no intention of attacking the credit or financial solvency of the plaintiff and that the language used did not do so." Also, that what it did was in performance of a legal duty which it owed the shipper, and that the statement "was made without malice, in good faith and was privileged."

On trial, the defendant's agent, over objection of the plaintiff, was allowed to testify as follows:

"Q. Mr. Cobb, when you used the expression on this card, which is in evidence, 'Is undelivered: Reason: No funds,' what was in your mind that you tried to express by that statement? A. I simply meant that no funds were there at the time the driver attempted to deliver it. I had no intention of meaning anything else.

Q. Did you mean that he was bankrupt? A. Absolutely not.

Q. Did you mean that he was embarrassed financially? A. I certainly did not.

Q. As you stated, just when that package was presented the funds were not present with which to take it up, is that correct? A. Absolutely."

The case was submitted to the jury and a verdict was returned in favor of the defendant. Plaintiff's motion for a new trial was granted upon the ground that the court committed error in permitting Cobb, defendant's agent, to testify-as above set out-as to his meaning and intent in writing "No funds" upon the postal card which was mailed by the defendant to the consignor of the shipment. Two contentions are made by the appellant: (1) That the testimony objected to was proper and admissible and that Judge Holman, in passing upon the motion for a new trial, erred in holding otherwise; and (2) that, even if error, the admission of this testimony did the plaintiff no harm.

We think a new trial was properly granted. In Oliveros v Henderson, 116 S.C. 77, 106 S.E. 855, syllabus 3 correctly states the holding of the court, as follows: "In determining whether words are libelous or slanderous, they must be given their ordinary popular meaning, unless the defendant, at the time such words were used, so modified or...

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1 cases
  • Smith v. Smith
    • United States
    • South Carolina Supreme Court
    • June 14, 1940
    ... ... announced in Milam v. Railway Express Agency, 185 ... S.C. 194, 193 S.E ... ...

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