Tucker v. Pure Oil Co. of Carolinas

• Court: South Carolina Supreme Court
• Writing for the Court: The opinion of the Court was delivered by MR. G. DUNCAN BELLINGER, ACTING ASSOCIATE JUSTICE.
• Citation: Tucker v. Pure Oil Co. of Carolinas, 3 S.E.2d 547, 191 S.C. 60 (S.C. 1939)
• Decision Date: 14 June 1939
• Docket Number: 14900.
• Parties: TUCKER v. PURE OIL CO. OF THE CAROLINAS et al.

3 S.E.2d 547

191 S.C. 60

TUCKER v. PURE OIL CO. OF THE CAROLINAS et al.

No. 14900.

Supreme Court of South Carolina

June 14, 1939

W F. Wimberly, of Charlotte, N. C., George D. Levy, of Sumter and Thomas, Lumpkin & Cain, of Columbia, for appellants.

Tompkins & Tompkins, of Columbia, for respondent.

G DUNCAN BELLINGER, Acting Associate Justice.

The respondent's Complaint contains two separate causes of action demanding in each of them $50,000 damages on account of certain alleged slanderous statements made of and concerning the respondent by the appellant C. C. Ingram while in the employ of his co-appellant Pure Oil Company of the Carolinas. From the rendition of verdict against each appellant on each cause of action, the appellants bring this appeal.

At proper times the appellants moved for a nonsuit and directed verdict on both causes of action, which motions were overruled. Appellants thereafter moved for a new trial, which motion was also overruled.

The appellants make twelve exceptions but in the presentation thereof, in its argument by grouping some of the exceptions, the appellants present five questions to be determined by the Court. Some of the questions raised involve both causes of action, while certain ones involve only a single cause of action.

The appellants specifically abandoned Exception I, and it was, therefore, not considered.

The questions presented by the appellants, as raised by the exceptions, are as follows: "1. Did the Court abuse its discretion in allowing witness whose presence was not indicated by complaint, to testify that she heard the publication? 2. Did the Court err in refusing to hold, as a matter of law, that the words were not defamatory and could not have been so understood under the circumstances? 3. Did the Court err in refusing to grant nonsuit or direct the verdict in favor of defendants on grounds stated in the record? 4. Was the Court's charge misleading and erroneous in the instances cited in the record? 5. Did the Court err in refusing to set aside the verdict and grant a new trial on the grounds stated in the record? 6. Did the Court err in refusing to grant nonsuit and directed verdict on the second cause of action as to the corporate defendant on grounds stated in the record?"

In considering the questions raised on the appeal, we shall take up the causes of action separately and dispose of them in the order set out in the Complaint.

As to the First Cause of Action

The respondent alleges in his complaint in substance, omitting the formal parts thereof, that he had formerly been employed by Pure Oil Company of the Carolinas but that he had previous to the time of the occurrence complained of, severed his connection with that appellant.

The first cause of action set out in the complaint is contained in paragraph 3, and is as follows: "3. That thereafter, on or about the 21st day of March, 1936, one Mrs. Carrie C. Williams, went to the filling station in the City of Sumter, which was formerly operated by the plaintiff, and asked the defendant, C. C. Ingram, who was in charge thereof and operating same as agent of the defendant corporation, why the said M. B. Tucker was not in charge of the station any longer, remarking that the said plaintiff was very accommodating and that in reply thereto the said C. C. Ingram, individually and as agent of the defendant corporation, stated to Mrs. Williams, 'that was his trouble; he was too accommodating and got checked out because he was short in his accounts', and that he, the said C. C. Ingram, individually and as agent of the defendant corporation, then and there stated to Mrs. Williams that he had no cans in which to sell her gasoline, remarking, 'I haven't got anything to serve it to you in, because Tucker took all the cans that belonged to the company'."

By their answer the appellants admit that the appellant Ingram was the zone manager in charge of his co-appellant's business in Sumter County, but deny the remaining material allegations of the complaint.

Appellants' exception two, which presents the first question to be passed upon, charges that the Trial Judge abused his discretion in allowing a witness, Miss Margaret Williams, the daughter of Mrs. Carrie C. Williams, whose presence at the time of the publication of the alleged slanderous statement was not indicated by the complaint, to testify that she was present and heard the publication by Ingram of the alleged slanderous statement. The complaint alleged that the slanderous words were spoken of and concerning respondent to Mrs. Carrie C. Williams, but did not set forth or in any wise indicate that anyone, other than Mrs. Williams, was present when the appellant Ingram is said to have uttered the slanderous statement to Mrs. Carrie C. Williams. The trial Judge permitted Miss Margaret Williams, over the objection of the appellants, to testify that she was with her mother at the station of the appellant Pure Oil Company and that she heard the conversation between the appellant Ingram and her mother. The testimony of this witness corroborated that given by Mrs. Carrie C. Williams. The appellants objected to this witness being allowed to testify on the grounds that the complaint alleged that the conversation complained of was made to Mrs. Williams, and that, by the complaint, they were not put upon notice that the witness was present at the time. The appellants rely upon the case of Bolin v. Cotton Oil Mill, 163 S.C. 13, 161 S.E. 195, to support this exception. The question here raised was not passed upon in the case referred to. In the Bolin case, the defendant had sought to have the complaint made more definite and certain by setting forth the names of the persons present at the time of the alleged slander in that case. This Court held that where a motion to make more definite and certain is made in cases of this nature, the plaintiff should set forth the names of the parties in whose presence it is alleged that the slanderous statements were made by way of publication, the reason being to enable the defendant to answer the charge made and prepare his defense.

An essential element of slander is that the slanderous words should have been spoken in the presence of some person other than the plaintiff, for without this the plaintiff could suffer no injury to his reputation and standing in the community. Publication in actions of this nature is always a material and issuable fact. By requiring the plaintiff to set forth in his complaint the name or names of the persons to whom the defamatory words concerning the plaintiff were spoken is not done for the purpose of requiring the plaintiff to disclose to his adversary the names of the witnesses that he relies on to prove to whom the defamatory words were spoken, but is to limit the issues to the particular person or persons named in the complaint. In the present case, the appellants were apprized by the complaint that the respondent intended to prove on the trial of the case that the publication of the alleged slander was made to Mrs. Carrie C. Williams. The appellants being put on notice of this by the complaint, were enabled to answer the charge made and prepare a defense thereto. In the proof of his case, the respondent was not restricted to the proof that the alleged slander was published to Mrs. Carrie C. Williams, by the testimony of that party alone, but he could call to testify any other person who was present at the time of the publication of the alleged slander to show that the same was published to Mrs. Carrie C. Williams. This is all that the respondent did when it introduced the testimony of Miss Margaret Williams to prove this material and issuable fact. It, therefore, follows that the Trial Judge committed no error in permitting the witness, Miss Margaret Williams, to testify.

Having discussed the questions of law peculiar to the first cause of action, we will now discuss the questions applicable to both the first and second causes of action.

Appellants' Question 3 alleges error of the trial Judge in his refusal to grant appellants' motion for nonsuit or directed verdict.

Appellants contend that the trial Court should have held as a matter of law that the words complained of as being slanderous were not defamatory and could not have been so understood under the circumstances. The gravamen of the charge made in the complaint is that in the conversation with Mrs. Carrie C. Williams, appellant Ingram, individually and as agent of his co-appellant, while acting within the scope of his authority as such agent, charged that the respondent was "short in his accounts". The evidence of the respondent showed that the term "shortage" in reference to the respondent, was used by appellant Ingram. It is true that a person may be short as a result of incompetency and not as a result of a criminal act, but where words may be susceptible of two meanings, one slanderous and the other innocent, it is for the jury to determine from all of the circumstances attending the publication in what sense the defendant used them. It, therefore, became a question for the jury to determine whether the words used were defamatory and the trial Judge would have erred had he held that as a matter of law the words were not defamatory. Nunnamaker v. Smith's, 96 S.C. 294, 299, 80 S.E. 465; Williamson v. Askin & Marine Co., 138 S.C. 47, 136 S.E. 21; McClain v. Reliance Life Insurance Co., 150 S.C. 459, 148 S.E. 478; Campbell v. Life & Casualty Insurance Co., 155 S.C. 63, 152 S.E. 18; Turner v. Montgomery Ward & Co. et al., 165 S.C. 253, 265, 163 S.E. 796; Bosdell v. Dixie Stores Co., 168 S.C. 520, 167 S.E. 834. This exception is without merit.

The appellants claim that the Court erred in refusing to grant a nonsuit or directed...