Thomas v. Southern Grocery Stores, Inc.

• Decision Date: 26 July 1935
• Docket Number: 14116.
• Citation: 181 S.E. 565,177 S.C. 411
• Parties: THOMAS v. SOUTHERN GROCERY STORES, Inc., et al.
• Court: South Carolina Supreme Court

181 S.E. 565

177 S.C. 411

THOMAS v. SOUTHERN GROCERY STORES, Inc., et al.

No. 14116.

Supreme Court of South Carolina

July 26, 1935

Appeal from Common Pleas Circuit Court of Pickens County; Wm. H Grimball, Judge.

Action by John Thomas against the Southern Grocery Stores, Incorporated, doing business under the trade-name of Rogers, and another. From a judgment for the plaintiff, the named defendant appeals.

Judgment affirmed.

BONHAM J., dissenting in part.

Haynsworth & Haynsworth, of Greenville, Julien D. Wyatt, of Pickens, and M. E. Kilpatrick, of Atlanta, Ga., for appellant.

Williams & Henry, of Greenville, J. O. Williams, of Easley, and W. C Mann, of Pickens, for respondent.

STABLER Chief Justice.

The facts out of which this action arose, briefly stated, are these: The defendant Southern Grocery Stores, Inc., owns and operates, under the trade-name of "Rogers," a chain of stores in South Carolina and other states, with its home offices in the city of Atlanta. For several years prior to July 28, 1933, the plaintiff, John Thomas, was manager of the store located at Easley, S.C. On that date, July 28th, C. H. Moore, vice president of the corporation, sent to A. J. Hambrick, its South Carolina superintendent, the following telegram: "Check John Thomas out immediately. $149.00 short."

The plaintiff alleged that this telegram, and the words and acts accompanying it, constituted libel and slander; three causes of action being set up in the complaint as follows: (1) That the defendant Hambrick and other agents of the corporation reported to the company's home office that the plaintiff was short at the Easley store in the sum of $149 and requested instructions by wire as to what disposition should be made of the matter; that Moore, in response thereto acting jointly with the defendant Hambrick and for the defendant corporation, ""issued, circulated and published of and concerning plaintiff, by delivery to and transmission over the Western Union Telegraph Company" from Atlanta to Spartanburg, the above "false, malicious, defamatory and libelous" telegram. (2) That Hambrick, upon receipt of the telegram, went to the Easley store, "and while acting within the scope of his authority, wickedly intending to injure the plaintiff in his business, reputation and good name, did jointly for himself and defendant corporation, willfully, wantonly, maliciously and falsely issue, publish and circulate the aforsaid and defamatory matter of and concerning plaintiff by reading the said telegram aloud in the presence of clerks, customers and other persons in said store and by permitting J. H. Hudson and others to read the said telegram; that the defendants, by their joint publication aforesaid, meant to and did charge that the plaintiff had committed a breach of trust with fraudulent intent, a crime indictable under the laws of South Carolina"; and that "acting further upon said telegram, the said A. J. Hambrick discharged or fired plaintiff from said defendant's store immediately after publishing the libelous matter aforesaid." (3) That Hambrick, while at the Easley store, and acting within the scope of his authority, jointly for himself and the defendant corporation, and willfully intending to injure the plaintiff in his business, good name, and reputation, uttered and published the following false and slanderous matter of and concerning Thomas, in the presence of clerks, customers, and others: "You are short with us $149.00. We are satisfied you are guilty. We are through with you and want you to leave our store immediately." Judgment was asked for on each cause of action in the sum of $25,000.

The defendants, answering the complaint, alleged that Hambrick, in the performance of his regular duties, periodically checked all the stores under his supervision, and forwarded to the Atlanta office reports "covering the operation of the store of which plaintiff was manager; that the report for the period from June 29, 1933, to July 18, 1933, showed an operating loss of $149.31""; and that this loss was what was meant by the word "short" in the telegram, there being no intention to charge plaintiff "with misappropriation of money with fraudulent intent, or breach of trust with fraudulent intent." For a second defense, the defendants alleged that the telegram was read to Thomas only at his insistence, and that if its contents became known to a third person, it was through plaintiff's own acts; and further, that all statements made and acts done by the defendants "were confidential and privileged."

On trial of the case, Judge Grimball overruled the defendants' motion for a directed verdict, and the jury found for the plaintiff on the second cause of action $10,000 actual damages against the defendant corporation and $200 actual damages against the defendant Hambrick. Counsel for Thomas then suggested to the court that it might be proper for the jury to make a finding on each cause of action, and stated that they might find for the defendants on the first and third causes. This being agreed to by opposing counsel, a verdict was returned in the following form: "On the first cause of action we find for the defendant no cause of action, W. A. Perry, Foreman; on the second cause of action we find for the plaintiff ten thousand dollars actual damages against the Southern Grocery Stores, Inc., and two hundred dollars against A. J. Hambrick; W. A. Perry, Foreman; on the third cause of action we find for the defendant no cause of action."

Thereafter the Southern Grocery Stores, Inc., moved for a new trial upon grounds which we will later consider. The court refused the motion, and that defendant appeals.

By its first exception, the appellant imputes error to the trial judge in refusing to direct a verdict in its favor "on the ground that the only reasonable conclusion to be drawn from the testimony was that the alleged publication of the alleged libel was made upon the insistence of the plaintiff and in the office of the store."

The plaintiff testified that he had worked for the defendant corporation as a store manager, for a number of years; that the store handled perishable goods on which was allowed a 5 per cent. loss, but that the loss at times exceeded that figure; that in 1929, Hudson, who was district superintendent of the company, and whose attitude toward the witness was very unfriendly became so hostile that he finally discharged him; that the witness then went to Atlanta and saw Moore, the vice president and general manager, with the result that Moore placed him back at work as manager of the Easley store, with Hudson as superintendent; that Hudson's attitude toward him became so unfriendly that after seven months he discharged him again; that he then went back to Atlanta to see Moore, who reinstated him as manager of the store at Easley, with Hambrick as superintendent; and that Hambrick's attitude toward the witness at the last was also unfriendly, finding fault where no fault existed, while Hudson, who was also at the store at that time, remained hostile and disagreeable.

It appears from the record that the Easley store was approximately one hundred feet long and divided in the center by a partition constructed of shelves about six feet high, with lattice work at the top of the shelving going to the ceiling; that there was a door in the partition to the left going in; and that the office was at the rear of the store and was separated by this partition from the main or front part where the customers and clerks were. The plaintiff stated that on July 28, 1933, he was at a merchants' meeting at the city hall, and that after it was over he returned to the store accompanied by Hambrick and Hudson, who were also present at the meeting; that when he went back in the store and put on his apron to go to work, Hambrick and Hudson came where he was, and Hambrick told him that they were going to check him out; that thereupon the witness asked what he had done and why they were going to check him out, and that Hambrick, with Hudson by his side, then read aloud the telegram; and that there were other persons, clerks, and two or three customers, in the store at the time.

Other witnesses testified that they were in the store and heard a part of the conversation between Thomas and Hambrick. Mrs. Thomas stated that when she came into the store and started back to the office she heard an angry voice there and stopped, and that Hambrick read the telegram to her husband and told him that it was proof of his guilt, and that they did not need his services any longer.

The contention of the appellant is that the alleged publication, as shown by the testimony, was induced by the plaintiff himself, and that this made the reading of the telegram privileged.

In 36 C.J. 1224, the general rule is thus stated: "If plaintiff consented to, or authorized the publication complained of, he cannot recover for any injury sustained by reason of the publication; and the same rule applies to a publication solicited or induced by inquiry on the part of plaintiff or his agent, at least if it was procured by the fraudulent contrivance of plaintiff himself, with a view to an action."

But at page 1231 of the same volume it is said: "Where a person originates a slander and afterward repeats it in answer to a question by the person slandered, made in good faith, merely to ascertain whether defendant had made such charge, the repetition is actionable."

And at page 1246: "A party cannot take advantage of such a situation in order to gratify his malice, and plaintiff may recover even where the publication was invited by him, upon proof of express malice on the part of defendant."

In Newell on Slander and Libel, 452, the following appears "If the only...