Sandifer v. Electrolux Corporation

• Decision Date: 11 February 1949
• Docket Number: No. 5820.,5820.
• Citation: 172 F.2d 548
• Parties: SANDIFER v. ELECTROLUX CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F.2d 548 (1949)

SANDIFER v. ELECTROLUX CORPORATION.

No. 5820.

United States Court of Appeals Fourth Circuit.

February 11, 1949.

Wade S. Weatherford, Jr., of Columbia, S. C., and John C. West, of Camden, S. C. (Murchison & West, of Camden, S. C., on the brief), for appellant.

Douglas McKay, Jr. and Douglas McKay, both of Columbia, S. C. (J. W. McKay and Roger M. Heyward, both of Columbia, S. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Plaintiff, Sandifer, sued defendant, Electrolux Corporation, in the United States District Court for the Eastern District of South Carolina, for slanderous remarks alleged to have been made by one Holmes, an agent of defendant. The facts leading up to and surrounding the alleged slander are briefly as follows.

Plaintiff, owner and operator of a grocery store in Columbia, South Carolina, worked on a part time basis for defendant as salesman for its vacuum cleaners and supplies. In this capacity, he solicited orders from customers on the basis of future deliveries of the machines, usually within six months; and the machines, as they became available at defendant's Columbia office, were then turned over to plaintiff for delivery in fulfillment of these orders. Plaintiff, upon delivery of the machines, either collected the full amount due on the purchase price or executed time payment contracts with the purchasers. All amounts thus collected by plaintiff were paid in full to the defendant corporation, plaintiff being compensated by commissions subsequently paid back to him. Operating in this manner, plaintiff was under a surety bond conditioned for the full and faithful discharge of his duties, including the accounting to defendant for all funds coming into his hands in connection with his employment.

In May, 1947, plaintiff received an allotment of eighteen machines for delivery in the customary manner. In July, Holmes, a traveling auditor for defendant, while auditing the books of defendant's Columbia office, found that no accounting had been made of five of these machines. Since, according to Holmes' testimony, it was a rule of the company that all machines be either sold or returned within two weeks, Holmes decided to call upon plaintiff at his place of business and did so on the afternoon of July 25, 1947.

The testimony is in considerable conflict as to what occurred at that meeting, but we are not now concerned with this conflict. Plaintiff's version, as alleged in his complaint and testified to by his witnesses, is that Holmes entered the store, directly approached plaintiff "in a rude, angry * * * and offensive manner, and in a loud, harsh, malicious, insulting and offensive tone of voice said to plaintiff, `I want the machines now or I want the money or I will report you to the bonding company immediately,'" that the said words "were capable of and did by insinuation and innuendo charge plaintiff with dealing dishonestly * * * or with being guilty of some crime" and that the words were so understood by others in whose presence and hearing they were uttered.

At the conclusion of the evidence, the District Judge submitted to the jury the question of whether or not the words imputed to plaintiff the commission of a crime involving moral turpitude or charged unfitness to perform the duties of a legitimate employment, charging in this respect that the jury should consider the relationship of the parties and all circumstances surrounding the utterance. To this portion of the charge there was no objection. The judge then charged, however, that plaintiff could recover only if he proved special or actual damage. Plaintiff excepted to this portion of the charge that placed upon him the burden of proving actual damage even if the jury should conclude that the words, in view of the surrounding circumstances, charged him with the commission of a crime. The jury returned a verdict in favor of the defendant. Plaintiff's motion for a new trial, based on this exception, was overruled and he has duly appealed to us.

The appeal presents but a single question: Under South Carolina law, when words do not on their face impute the commission of a crime, but when the jury after considering them in the light of the circumstances surrounding their utterance attaches to them this meaning, must a plaintiff prove special damage in order to recover?

We are forced to recognize at the outset that there is some apparent conflict in the South Carolina decisions. The principal difficulty seems to arise, in part, from divergent and inconsistent meanings attached at different times to the phrases slanderous per se, actionable per se and slanderous per quod. Since we are not as concerned with the appropriate connotations to be given these phrases as with the legal results which flow from the situations they describe, we shall avoid their use insofar as possible and make no attempt to clarify their meanings in the law of South Carolina.

It is undoubtedly true as a general proposition that there is no requirement of proof of actual damage where the spoken words plainly and falsely charge the commission of a crime, the contraction of a contagious disease, adultery or a want of chastity, or unfitness in the way of a profession or trade. See Galloway v. Cox, 172 S. C. 101, 172 S. E. 761, 762, quoting from Black's Law Dictionary, 3d ed., 1104. From the natural and immediate tendency of such words to produce injury the law presumes that some damage has occurred, although no actual loss or damage is, or can be, proved. Any special damage that has in fact accrued, however, may of course be proved. Newell, Libel and Slander § 745.

The question, here, is whether this presumption of damage arises where the words do not on their face charge the commission of a crime but have this effect only when considered in connection with all the surrounding circumstances. We think that it does.

In Odgers, 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." And as a logical matter it should be immaterial whether the commission of a crime is charged positively and directly by words of clear and unmistakeable meaning or only indirectly and by means of innuendo. So long as the words are understood by third persons to make the charge, the effect from the standpoint of damage done may be calculated to be the same. It has, in fact, been noted several times by the South Carolina courts that a hidden charge made by insinuation and innuendo may inflict graver injury and injustice than a direct and specific accusation which, if false, may be more easily met and refuted. Lily v. Belk's Department Store, 178 S.C. 278, 182 S.E. 889, 891; Duncan v. Record Publishing Company, 145 S.C. 196, 143 S.E. 31, 41. See, also, Palmerlee v. Nottage, 119 Minn. 351, 138 N.W. 312, 42 L.R.A.,N.S., 870.

Whether the words directly and on their face make the charge or do so only by way of insinuation and innuendo is, of course, important from the standpoint of...