Waring v. South Carolina Power Co.

• Court: South Carolina Supreme Court
• Writing for the Court: FISHBURNE, Justice.
• Citation: Waring v. South Carolina Power Co., 177 S.C. 295, 181 S.E. 1 (S.C. 1935)
• Decision Date: 14 August 1935
• Docket Number: 14129.
• Parties: WARING v. SOUTH CAROLINA POWER CO.

181 S.E. 1

177 S.C. 295

WARING v. SOUTH CAROLINA POWER CO.

No. 14129.

Supreme Court of South Carolina

August 14, 1935

Appeal from Common Pleas Circuit Court of Dorchester County; C.J Ramage, Judge.

Action by L. C. Waring, Jr., against the South Carolina Power Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Legare Walker, of Summerville, and Hagood, Rivers & Young, of Charleston, for appellant.

J. D Parler, of St. George, and A. R. McGowan, of Charleston, for respondent.

FISHBURNE Justice.

This is an action based upon common-law fraud and deceit, and was tried before his honor, Judge C.J. Ramage, and a jury, in Dorchester county, resulting in a verdict for the plaintiff in the sum of $1,000. The matter comes before us on appeal by the defendant from the order of the trial judge overruling a motion for a directed verdict, upon three exceptions, which raise one vital issue: That the trial judge erred "in refusing to grant defendant's motion for a directed verdict where the only reasonable inference to be drawn from the testimony was that there was not a scintilla of evidence to show that the defendant was guilty of any fraud."

The gist and background of the action is contained in paragraph 8 of the complaint, which alleges: "That the defendant its agents and servants, have been guilty of fraud, in that they did knowingly, wilfully, maliciously and falsely represent to this plaintiff that he was being released for a vacation, and did wilfully, maliciously and falsely represent to this plaintiff that he would receive the commissions under and in pursuance of his contract of employment on the sales that were consummated while he, the plaintiff, was away on the supposed vacation; that the defendant, its agents and servants, did cleverly connive and scheme, and did wilfully and falsely make misrepresentations to this plaintiff in an effort to, and did by such false acts and representations acquire valuable information concerning prospective sales, from this plaintiff; that the defendant, its agents and servants did knowingly, wilfully, falsely and unlawfully represent to this plaintiff that he was released on vacation and his commissions on prospective sales when consummated would be paid to him; that the defendant, its agents and servants, did knowingly, wilfully, maliciously and unlawfully, through false representations hold this plaintiff in suspense for a period of months under their false promises, inducements and false representations in that they, the defendant, could reap the profits and benefits of the untiring efforts of the plaintiff and in preventing him, the plaintiff from aligning or associating with other and competitive companies; that all of their said fraudulent acts and doings were knowingly perpetrated when made and were made with the express purpose of cheating and defrauding this plaintiff out of that to which they knew he was entitled and for the sole remuneration and gain of the defendant, all to the damage of the plaintiff in the sum of Five Thousand ($5,000.00) Dollars."

The defendant denied the material allegations of the complaint.

The case for the plaintiff depends wholly upon his own testimony, which tends to show that he was employed by the defendant in January, 1927, as a salesman to sell gas appliances and electrical appliances, and was assigned to work in the territory around Ridgeville, Holly Hill, and Eutawville. He started to work on a salary of $50 per month, together with 10 per cent. commissions on all sales consummated by him. This status continued until August 2, 1932. Plaintiff's earnings in 1929 amounted to $3,557.40, in 1930 to $4,201.97, and in 1931 to $2,292.44.

Virtually all of the plaintiff's dealings with the defendant were with Mr. Connelley, who was the sales manager. While at Holly Hill, upon the suggestion of Connelley, the contract between the plaintiff and the defendant was changed so that plaintiff would receive 10 per cent. commissions on all sales he made up to $1,200, and 14 per cent. on all sales over that amount. This change was made August 2, 1932, and plaintiff agreed to it. Prior to this time plaintiff had been selling domestic appliances, but under the new contract it was agreed that he would sell commercial appliances, and would be given for his territory the entire city of Charleston. It was his duty to make contact with prospective purchasers and to make daily reports of his work to the office. He reported ten new prospects per day. Plaintiff testified that defendant had no right to change him to another territory nor to change his compensation without notice. He also testified that during the period he worked in Charleston under the new contract his compensation decreased constantly because the public did not buy the commercial appliances.

In November, 1932, he consummated one sale, and defendant "excused" him from further work and told him that they were going to take the territory away from him and, without his knowledge, sent another salesman into the territory, who consummated a sale to one of his prospects, the City Orphan House, on which sale his commission amounted to $180. The defendant tendered him this sum of $180 just before the trial was entered into.

After excusing him from further work, the defendant gave him thirty days within which to effectuate sales to prospective purchasers contacted by him, and agreed that he should be protected during that period from competing salesman of the company. The latter part of November, 1932, the plaintiff interviewed Connelley, sales manager, concerning his money-presumably unpaid commissions on sales previously made. Connelley commended him on the sales he had made and on his record, and suggested to him that he take a vacation until the first of the year, at which time Connelley stated that the plaintiff would be given a good territory, to all of which plaintiff agreed. It was further agreed that the new territory would be an outlying district, where plaintiff could make more money. It was also agreed that plaintiff would be paid commissions on all sales completed with prospective purchasers in the Charleston territory whom he had previously contacted.

Plaintiff took the vacation, and, returning, interviewed Connelley about January 10, 1933, and three or four times between that date and May 26, 1933, about the promised job. Each time he was put off by Connelley, and told to come back.

Finally, on May 26th, during an interview, Connelley told him he liked him, did not want to lose his services, and would look out for him. Plaintiff told him that he was tired of his promises and would have to get another job, and Connelley told him he would be unable to find one.

The plaintiff was paid $19 by the defendant in accordance with an itemized statement rendered by him, after which plaintiff got a place as salesman with the Frigidaire people in Charleston, and later secured a position in Columbia with the Southern Scale & Refrigerator Company, and he was in the employ of the latter company at the time of this trial. He contends that he was in the employ of the defendant until May 26, 1933, when he quit, and during that time he was paid nothing. He could not state what his earnings were in 1932, but stated that the company's records would show the amount.

On cross-examination plaintiff admitted that 1932 was a lean year; that the defendant and its employees were very friendly to him during the time that he worked for it.

H. H. Higgins, for the defendant, testified that he called Waring into the office in November, 1932, and definitely discharged him, because his services were unsatisfactory and unproductive and far below the business produced by the defendant's other salesmen; that he had warned Waring on several occasions that, if he did not become more active and increase his sales, the company would not keep him; that this trouble with Mr. Waring started in September, 1931, at which time the first warning was given him, and that he kept at him to increase his sales, but plaintiff did not improve; that Waring was employed on a commission basis, beginning the first of the year 1932.

J. P Connelley for the defendant, testified that he had supervision of the defendant's salesmen, and that the plaintiff was at one time a very satisfactory salesman and produced well until September 1, 1931, when he got into a sales slump and never got out of it. He instructed Mr. Higgins to discharge plaintiff, and this was done in November, 1932. After the discharge, the plaintiff came into his office and told him that Higgins had discharged him, and he wanted to know if he could assist him with some taxes; that he could not afford to lose his job at that time. He told plaintiff that he had been with the company a number of years and had been given ample time, after repeated warnings, to improve, but that he had not done so, but he would give him an opportunity to sell small appliances in February, and told him to come back at that time, that something might open up. He did not definitely promise him anything. Plaintiff came back about January 1st, and was employed as crew supervisor in February for the sale of small appliances. He worked four or five days, and sold one flatiron. He stated that the defendant had no custom of giving salesmen vacation in December, when business is at its best; that...