Thornton v. New South Life Ins. Co., 19861

• Decision Date: 16 July 1974
• Docket Number: No. 19861,19861
• Citation: 207 S.E.2d 88,262 S.C. 651
• Court: South Carolina Supreme Court
• Parties: John T. THORNTON, Appellant, v. NEW SOUTH LIFE INSURANCE COMPANY, and Retail Credit Company, of which RetailCredit Company is, Respondent.

Page 88

207 S.E.2d 88

262 S.C. 651

John T. THORNTON, Appellant, v. NEW SOUTH LIFE INSURANCE COMPANY, and Retail Credit Company of which RetailCredit Company is, Respondent.

No. 19861.

Supreme Court of South Carolina.

July 16, 1974.

Jefferies & Wise, Greenwood, for appellant.

Burns, McDonald, Bradford, Erwin & Few, Greenwood, for respondent.

PER CURIAM:

In this action by a former insurance agent against Retail Credit Company for damages for libel, based upon an allegedly false and defamatory report concerning plaintiff furnished to a prospective employer, the court granted summary judgment for defendant upon the ground that the evidence was not susceptible of an inference of malice. Plaintiff has appealed upon two grounds, contending (1) that whether the conduct of the defendant was so reckless as to be the equivalent of malice is an issue of fact under the evidence, and (2) that recovery should be allowed upon proof that defendant was negligent in its investigation and report on plaintiff's work record, which is an issue of fact under the evidence.

By the great weight of authority, a report made to a subscriber by a mercantile or credit agency, in good faith, in the regular course of its business, is privileged. The privilege is qualified and will be lost if the agency acts maliciously or in reckless disregard of its duty to exercise reasonable care to make a fair and accurate report. It is generally agreed that mere negligence in furnishing inaccurate information will not destroy the privilege. 15 Am.Jur.2d, Collection and Credit Agencies, Sec. 23 (1964); Annot., 30 A.L.R.2d 776 (1953); Annot., 40 A.L.R.3d 1049 (1971). We adopted this rule in Cullum v. Dun & Bradstreet, Inc., 228 S.C. 384, 90 S.E.2d 370 (1955), where the direction of a verdict for the defendant was sustained upon the ground that there was no evidence of malice nor of negligence 'so gross as to amount to malice.' 228 S.C. at 390, 90 S.E.2d at 373.

Plaintiff has requested and been granted leave 'to argue for the overruling or modification of (the Cullum decision) to the extent that (it) requires the proof of actual malice and not implied malice and to the extent that (it) does not allow recovery upon the proof of either simple negligence or gross negligence.'

As indicated above, we do not construe the Cullum decision as holding that the privilege shielding a reporting agency from liability for defamation may be destroyed only by proof of actual malice in the sense of ill...