Pierce v. Inter-Ocean Cas. Co.

• Decision Date: 16 November 1928
• Docket Number: 12524.
• Parties: PIERCE v. INTER-OCEAN CASUALTY CO.
• Court: South Carolina Supreme Court

145 S.E. 541

148 S.C. 8

PIERCE v. INTER-OCEAN CASUALTY CO.

No. 12524.

Supreme Court of South Carolina

November 16, 1928

Cothran J., and Thurmond, A. A. J., dissenting.

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by Tressie J. Pierce against the Inter-Ocean Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Insurance commissioner's letter to insurance agency respecting complaints by other policy holders held admissible, in attorney's action against agency for libel, to show falsity of charges against her.

Frank G. Tompkins, of Columbia, for appellant.

E. J Best and J. B. McLauchlin, all of Columbia, for respondent.

STABLER J.

This is an action for damages on account of an alleged libelous letter written by an agent of the defendant company, under date of March 9, 1925, to the law firm of Pierce & Lester, of which the plaintiff was the senior partner; a copy of the letter being sent to the state insurance commissioner. That part of the letter particularly objected to by the plaintiff is as follows:

"And it seems that some of these negroes through your influence are having their policies canceled. *** Likewise we do not think you as attorneys should encourage policy holders to try to take advantage of this or any other insurance companies."

The plaintiff alleged, among other things, that the above language was libelous and maliciously false, that it charged her with conduct contrary to law, good morals, and honest dealing, and that it tended to impair and destroy the confidence and esteem in which she was held in her business, reputation, and profession as an attorney.

The defendant admitted the writing and mailing of the letter, but denied that there was any intention to reflect upon the character of the plaintiff, and alleged the belief that the language used was not libelous.

The case was tried in the county court for Richland county on October 5, 1926. At the close of all the testimony defendant's motion for a directed verdict was refused. The jury found for the plaintiff in the sum of $1,000 actual damages. The defendant appeals, and imputes error by a number of exceptions.

I agree with Mr. Justice COTHRAN in his disposition of the exceptions alleging error on the part of the trial judge in refusing to direct a verdict for the defendant. The language used in the alleged libelous letter was of a defamatory character, charging the plaintiff with dishonest dealing and unprofessional conduct, and clearly actionable.

I dissent, however, from the conclusion arrived at that, because of alleged error in the admission and exclusion of certain testimony, the judgment should be reversed and a new trial ordered, and will state briefly my reasons therefor. When the plaintiff was on the stand, the trial judge, over objection of the defendant, permitted her to testify, in substance, as appears in the record:

"These people came to her, claimed that they had been overcharged and wanted their policies canceled and money refunded. She took the matter up with the company by letter, who finally agreed to refund the money to Clarence Stitt and Robert Eggister, which they did. Several days afterward, five others came in within a few days of each other, one at a time, with the same complaint, some saying that they had been to the insurance commissioner about it and had obtained no relief. She had a lot of correspondence with the company about it, and they would send copies of their letter to the insurance commissioner, who would reply sending a copy of his letter to the plaintiff, and finally she received the letters set out in the complaint."

Defendant's counsel, while correctly stating that "the case of McLeod v. American Publishing Co., 126 S.C. 363, 120 S.E. 70, holds that courts are more liberal in the admission of evidence in cases of libel and slander than in other cases and that the trial judge is vested with a large discretion, both as to competent testimony and the amount of testimony," contends that this testimony was so clearly beyond the scope of the issues involved as to be highly prejudicial and that the court abused its discretion in admitting it. The court said:

"If I go by the correspondence, that part of it as set out in the complaint, she alleges here that what they wrote her was false and maliciously false. That goes into the gist of the libel action, so I can go back and rule on that other question. She is entitled to show how she handled these claims in order to show whether or not this language was false. They charge her here with using her influence in having their policies canceled and encouraging policy holders to try to take advantage of this insurance company and other insurance companies. She is entitled to show whether that language was false or not so that the court, when it has to consider this language, will have to consider it in the light of that. If it goes to the jury, they are entitled to have it in the light of that also, because otherwise we might not be able to get at whether the language is false or not. She alleges that. It is one of the main issues in the case. As I see it, she is entitled to go into the general issues surrounding these claims, how she handled them and why."

The language of the letter charged the plaintiff with influencing some of the defendant's negro policy holders to cancel their policies, and, by clear intimation, that she was encouraging policy holders to take advantage of the defendant and other insurance companies; the plaintiff pleaded that these charges were false-maliciously false. As pointed out by the trial judge, the truth or falsity of the charges was one of the main issues in the case, and the testimony offered by the plaintiff and admitted by the court was competent as tending to prove the allegation. "Although the falsity of defamatory matter is presumed, it is competent for plaintiff, if he so desires, to offer affirmative evidence showing its falsity." 37 C.J. 86. The contention that the trial court abused its discretion in admitting this testimony is without merit.

When Briggs, a witness for the defendant, was on the stand, he stated that he remembered that some of these men claimed that the terms of the policy had been misrepresented to them, but that he had not misrepresented them. The court, however, did not allow counsel for the defendant to question the witness as to whether or not he had misrepresented the terms of these policies in writing them, stating the reason for its ruling to be:

"Whether he did or didn't makes no difference as far as these issues are concerned. The truth of that charge has nothing to do with the material facts in this case. But the statements that those statements were made that they were misrepresentations has something to do with it, in that it comes in as showing the surrounding circumstances that Miss Pierce dealt with these people on the fraud charge, but the truth of the charge has nothing to do with it."

The refusal of the court to admit the testimony is made the basis of an exception, the appellant contending that it was relevant and competent in reply to certain of testimony given by the respondent. This contention is without merit. The testimony of the plaintiff was to the effect that some of her clients had told her that misrepresentations had been made to them, and that they had been overcharged and desired to have their policies canceled. The plaintiff did not testify as to the truth of these statements and Briggs' testimony was not intended to contradict any statement declared by her to be a fact; its purpose was not to disprove the truth of the alleged libelous charge, but simply to inject into the case a question of veracity as between the defendant's witness Briggs and the plaintiff's clients, which could in no way throw any light upon the main issue of the case, and was, therefore, incompetent and properly excluded. In 17 R. C. L. at page 403, we find:

"The rules determining the admissibility or competency of evidence in civil actions generally are applicable in actions for the recovery of damages for libel or slander, and testimony in such actions is properly rejected which contravenes the fundamental rule that evidence shall be confined to the issues. Thus it has been held that one suing for slander in being charged by another with setting fire to his building cannot be permitted to testify that he never made threats to burn the building, for the purpose of contradicting witnesses who have testified that they communicated to the defendant, before the fire, the fact that they had heard the plaintiff make such threats. Such evidence would inject into the case a question of veracity which would throw no light on the issue to be tried."

The appellant also complains that there was error in the admission of the following letter written by the insurance commissioner to the insurance agency, dated January 23, 1925, a copy of which was sent to the law firm of the respondent:

"Re Robert Eggister.

I had hoped that we had reached the end of these complaints against your policies, but I have this day received a letter from lawyers for this insured. I inclose the letter.

It appears that at his request, I wrote you and returned his policy sometime ago, but that you have refused to cancel it and have continued to deduct from his wages.

It should be cancelled as of the date of my letter and any collection after then, refunded."

What I have said with respect to the admission of plaintiff's testimony objected to applies here. Under the allegations of the complaint, the falsity of the language used in the alleged libelous letter was one of the main issues in the case. The plaintiff was not required to prove her allegation as to its falsity, but might do so...