Turner v. Montgomery Ward & Co.

• Decision Date: 12 April 1932
• Docket Number: 13383.
• Parties: TURNER v. MONTGOMERY WARD & CO. et al.
• Court: South Carolina Supreme Court

163 S.E. 796

165 S.C. 253

TURNER v. MONTGOMERY WARD & CO. et al.

No. 13383.

Supreme Court of South Carolina

April 12, 1932

Appeal from Common Pleas, Circuit Court of Sumter County; P. H Stoll, Judge.

Action by Ida S. Turner against Montgomery Ward & Co. and another. From judgment for plaintiff, defendants appeal.

Affirmed.

Lee & Moise, of Sumter, and C. B. Fullerton, of Chicago, Ill., for appellants.

L. D Jennings, of Sumter, for respondent.

STABLER J.

This is an action for damages based upon certain alleged slanderous statements made concerning the plaintiff; the delict charged being set out in the complaint in the following language "That on or about the 31st day of July 1930, the defendant H. L. Hoover, as General Manager of the defendant Montgomery Ward & Company, accompanied by two ladies, one of said ladies being in the employ of the defendant Montgomery Ward & Company, came to the home of the plaintiff, and the said H. L. Hoover, as said manager, stated to the plaintiff in substance that she had come to the store of Montgomery Ward & Company on Saturday night, July 26th, 1930, and had purchased a bill of goods amounting to twenty-nine dollars and had given in settlement of said bill her check for twenty-nine dollars, which check, when presented to the bank, had been turned down, because she had no funds in the bank with which to pay same. That she knew she had no funds in the bank when she gave the check; that she had obtained the twenty-nine dollars worth of merchandise under false pretenses, for which she could be and would be prosecuted unless she paid said check.

"As soon as the plaintiff was accused of giving said check, she immediately told the said H. L. Hoover that she did not purchase any goods from Montgomery Ward & Company on said occasion; that she had not given any check; that the signature on said check was not hers; that the initials were not hers; but when she made this denial, the lady in the employ of the said Montgomery Ward & Company stated to the plaintiff that she was only making this denial for the purpose of getting out of paying said check, and stealing from Montgomery Ward & Company the merchandise which she had gotten; that it was no use for the plaintiff to deny giving the check, because she herself had waited upon her, and had sold her the goods. But notwithstanding this denial on the part of the plaintiff, the said H. L. Hoover continued to accuse her of obtaining said twenty-nine dollars worth of merchandise under false pretenses, with the purpose of cheating and defrauding Montgomery Ward & Company out of the same, and to threaten to prosecute the plaintiff unless she paid check."

The plaintiff further alleged that she neither purchased the goods nor gave the check in question; that the accusations and statements were made in the presence of her husband and others and were malicious and false, and were intended to impeach her character and good name and to expose her to disgrace, contempt, and ridicule. The defendants denied each and every allegation in the complaint; and alleged that on July 26, 1930, a lady purchased a bill of goods from the defendant company and in payment therefor gave a check, containing the signature of W. M. Turner, on the City National Bank of Sumter, S. C., for the sum of $29, which, when presented, the bank refused to pay; that in order to ascertain who had given the check, the defendant Hoover, together with Mrs. Arnold and Miss Guill, two of the clerks in the store, went to the home of the plaintiff and inquired whether the check was hers; that upon being informed that it was not, Hoover advised her that he was merely trying to find out who gave the check and was sorry to have troubled her. The defendants further allege that the inquiry was made in good faith, without malice toward plaintiff, in discharge of a duty to ascertain who had had the transaction with the company, which the defendants had a right to do, and was qualifiedly privileged.

The trial of the case in the court of common pleas for Sumter county, July, 1931, before Hon. P. H. Stoll, presiding judge, and a jury, resulted in a verdict for the plaintiff for $4,923.91. Motions for a nonsuit, a directed verdict, and a new trial, duly made by the defendants, were refused by the court. From judgment entered on the verdict, this appeal is taken.

Upon call of the case for trial, and after lists of the jurors had been prepared and handed to the attorneys for striking, counsel for plaintiff asked the court to place two of the jurors, Whitehead and Pate, on their voir dire; this request was granted, and the trial judge, having questioned them, directed them to stand aside. The appellants complain that this was error, alleging that nothing appeared from the examination of these jurors which disqualified either of them to serve in the case.

This court, in State v. Sharpe, 138 S.C. 58, 135 S.E. 635, 637, passing upon the question of the qualification of a juror, observed that "our circuit judges should be very careful to keep off juries persons who are related to the parties, or who, in any manner, have an interest in the result of the cause." And in Fender v. Life Insurance Company, 158 S.C. 331, 155 S.E. 577, 578, with reference to the same question, had this to say: "It is well recognized in this state that questions relating to the fitness of jurors to serve in cases are very much within the discretion of the trial judge. This court consistently refuses to reverse a case because of the judge's rulings in matters thereabout, unless it plainly appears that there was an abuse of the discretion allowed to the judge, and that such abuse of discretion may have resulted in harm to the losing party."

In the case at bar, the juror Whitehead, when placed upon his voir dire, stated that he had been in the employ of the attorneys for the defendants, as their bookkeeper, for more than twenty years, and that he had heard the lawyers discuss this particular case among themselves, but knew nothing about the facts; that while he did not think his being in their employment would influence him in any way in reaching a verdict, it would be rather embarrassing, as he naturally wished to see his employers win all their cases. The juror Pate stated that he had been employed as an outside man by these same attorneys for about ten years, but that this fact would not influence him in any way, except to the extent that he would like to see the firm he was working for win. In these circumstances, there was no abuse of discretion on the part of Judge Stoll in standing aside these jurors. On the contrary, we think that he properly did so, and approve his action in the matter.

The main questions presented by the appeal are those arising out of the court's refusal to direct a verdict for the defendants.

The record discloses that in July, 1930, the defendant Hoover, who was the manager of the defendant company's store at Sumter, S. C., accompanied by two ladies employed by the company as clerks, went to the home of one H. T. Turner, near Mayesville, in Sumter county. The plaintiff, the wife of Turner, testified that Hoover, upon his arrival there, inquired whether she was Mrs. W. M. Turner, and on being told that she was not, but was Mrs. H. T. Turner, replied, "You are Mrs. W. M. Turner *** I have a check for you"; that he went to his automobile and got a check, and, exhibiting it to her, said: "Here, this is your check. *** You and your daughters gave this check to Montgomery Ward Company at ten o'clock Saturday night, got two dresses for $30.00, and you said make it $29.00, you gave this check. *** This check is no good and you had no money in the bank and got these goods under false pretenses"; and that he would prosecute her if she did not pay the check. Richard Turner, Henry Turner, and Irene Turner, who were present, testified to the same effect, namely, that Hoover stated that the plaintiff had got the goods under false pretenses and if they were not paid for he would prosecute her; one of them saying that Hoover added that obtaining goods under false pretenses was the same as stealing. The plaintiff further testified that, at the request of Hoover, she went out to the automobile and that one of the women who had come with him declared, in the face of denials, that plaintiff was the woman who had made the purchase of the goods, and that she was trying to get out of paying the check and to get the goods under false pretenses.

It is contended, in the first place, that the alleged defamatory words were not actionable per se in that no crime was charged, and that, this being true, since there was no allegation or proof of any special damages, the trial judge should have directed the verdict on these grounds. It is urged in support of this contention that there was no proof that the alleged accusation went so far as to charge plaintiff with fraudulent intent, and that the alleged defamatory words, even if spoken as contended for by plaintiff, did not charge a crime, for the reason that seven days had not elapsed between the date the check was given and the date it is alleged the slanderous charges were...