Nettles v. MacMillan Petroleum Corp.

• Citation: 42 S.E.2d 57,210 S.C. 200
• Decision Date: 28 March 1947
• Docket Number: 15929.
• Parties: NETTLES v. MacMILLAN PETROLEUM CORPORATION.
• Court: United States State Supreme Court of South Carolina

42 S.E.2d 57

210 S.C. 200

NETTLES v. MacMILLAN PETROLEUM CORPORATION.

No. 15929.

Supreme Court of South Carolina

March 28, 1947

Nelson, Mullins & Grier, of Columbia, for appellant.

William P. Donelan and Fred D. Townsend, both of Columbia, for respondent.

FISHBURNE Justice.

The action is for slander. Upon trial, at the close of the testimony offered by the plaintiff, the defendant moved for judgment of non-suit on the ground that the words proved to have been spoken were not actionable per se, and that inasmuch as the plaintiff offered no evidence to show the meaning of such words as interpreted by any person present who may have heard them, there was no sufficient evidence to go to the jury on the question of slander. This motion was granted, and from this ruling the plaintiff appeals.

The substance of the allegations of the complaint and the proof offered to support them is that the defendant falsely and maliciously accused the plaintiff of having committed an embezzlement of the property and funds if his employer, a Mr George, amounting to larceny.

Appellant who was the only witness in his behalf, testified that a representative of the respondent, MacMillan Petroleum Corporation, came to Columbia and arranged with Mr. George to sell its products in Richland County as a distributor. That plaintiff, as an employee of George, was given complete charge of the sale of these products, and would travel from point to point in furthering their sale. He had full control of credits and collections, and with reference to such matters was authorized to exercise his own judgment. That in the discharge of his duties he borrowed and used from time to time some of the money collected by him with the knowledge and consent of George, and that 'every Monday morning they would check up and he would tell Mr. George just exactly what to charge to him and ehat not to, and what accounts were all right to let them alone, not to bother them because he wanted to make a success of this thing.'

Sometime in July, 1939, the respondent sent its representative, Mr. Eichelberger, to Columbia to full explain the use of its products and to promote the sales thereof; and to this end, travel around with appellant to interview prospective customers and check up on the business done. Later, a second visit was made by Mr. Eichelberger, accompanied by Mr. Deitrich, another representative of respondent, which furnished the setting for this action.

The words alleged to have been slanderous were uttered in the place of business of Mr. George after Mr. Deitrich had inspected appellant's accounts showing various sales of respondent's products and the collections made thereon. In looking over a sales account Mr. Deitrich said:

"What about this account here?' I said, 'It is all right. It is charged up to me. That is good.' And he went through a bunch of them and he never said anything about any credits or anything. It went to about a little over $125 and he said, 'Do you owe this money?' I said, 'I don't know that this is any of your business.' I said, 'I didn't come out here to check up with you or anybody anyway.' He said, 'Don't you know you made yourself liable to get out with this money and dispose of it and not turn this money in to Mr. George?"

The cause of action for slander is based upon the last sentence just above quoted, and the plaintiff testified that these alleged slanderous words were spoken to him by Mr. Deitrich in the store of Mr. George in the presence and hearing of Mr. Eichelberger, Mrs. George, and other people standing around in the store. The plaintiff offered as a witness no person who was present, to show that the language was used in the defamatory sense alleged in the complaint.

In passing upon the motion for a monsuit, the trial judge ruled that the alleged slanderous words were not actionable per se because they did not directly charge the appellant with the commission of any crime. He held that the spoken words were ambiguous and in effect were susceptible of both a slanderous meaning and an innocent meaning; and he ordered a nonsuit because neither the plaintiff nor any witness who was present and heard the words uttered, testified as to what he or they interpreted those words to mean. Therefore, there was no question to submit to the jury.

The appeal presents but a single question: In an action for slander, where the words used are susceptible of two meanings, one imputing a crime and the other innocent, should the plaintiff be nonsuited because he failed to produce at least one of the...