White v. Southern Oil Stores

• Decision Date: 30 October 1941
• Docket Number: 15318.
• Citation: 17 S.E.2d 150,198 S.C. 173
• Parties: WHITE v. SOUTHERN OIL STORES, Inc.
• Court: South Carolina Supreme Court

17 S.E.2d 150

198 S.C. 173

WHITE v. SOUTHERN OIL STORES, Inc.

No. 15318.

Supreme Court of South Carolina

October 30, 1941

Price & Poag, of Greenville, for appellant.

D B. Leatherwood, of Greenville, for respondent.

BAKER Justice.

This is a tort action for slander, and resulted in a verdict in favor of the respondent in the sum of $750 actual, and $250 punitive damages.

The respondent was employed by appellant, the owner of a number of gasoline and oil service stations in the South, as the manager of its station at Greenville, S. C. Following a checking and auditing of this filling station on or about April 20, 1939, by H. G. Lonas, a representative and agent of appellant, and a part of whose duties was to check and audit the various stations operated by appellant respondent was on April 21, 1939, discharged as the manager of said station.

It is alleged in the complaint that H. G. Lonas, the agent of appellant as aforesaid, during the week following the discharge of respondent, stated to H. C. Harvley, the father-in-law of respondent, "in substance as follows 'that the defendant had fired the plaintiff herein because of a large shortage at said station, which shortage had been brought about by plaintiff personally taking gasoline from tank cars of the defendant for his personal use and for the personal use of other employees at said station,' thereby charging the plaintiff with larceny, ***."

While the complaint set forth other statements derogatory to respondent alleged to have been made by the same agent to two others, upon a trial of the case respondent relied solely upon the statements made to his father-in-law, Mr. Harvley, he being the only witness for respondent, and the respondent himself not being offered as a witness; hence it is unnecessary to make further reference to the allegations of the complaint. And in the light of the testimony for the respondent, the failure of the appellant to put up any testimony, and the issues raised by this appeal, it will suffice to say that the answer of appellant denied the making of the alleged slanderous statement concerning respondent to Mr. Harvley, but pleaded the truth of a shortage.

As hereinbefore stated, the only witness on behalf of respondent was his father-in-law, who testified in part as follows:

"In April, 1939, Mr. Lonas came to see me and told me it had been necessary to fire Mr. White as their manager on account of a large shortage of gasoline which had been removed from cars or tanks at the station, and not only Mr. White used the gas for his own use, but for the use of other employees at the station.

"Q. He told you it had been necessary to fire him for the large shortage that had been brought about by whom? A. By Mr. White keeping gasoline not only for his use, but for the use of other employees at the station.

"Q. Did he tell from what source? A. Removed it from tank cars before it was run through the main.

"Q. What do you mean by tank cars? A. Gasoline comes in tank cars, eight or ten thousand gallons to the tank.

"Q. And is transferred to-- A. To upright tanks which have meters on them."

Upon the announcement by counsel for plaintiff (respondent) that plaintiff would offer no further testimony, appellant moved to be permitted to put respondent on the stand as a hostile witness, and cross-examine him. This motion was refused, and thereupon appellant anounced that it would not offer any evidence.

The "Issues" raised by this appeal are: (1) Did the Court err in refusing appellant's motion to call respondent as a hostile witness? (2) Was respondent under the burden of proving the falsity of the charges alleged to have been made against him? (3) Did the trial Judge err in charging the jury that as a matter of law the words alleged to have been spoken by appellant against the respondent were slanderous per se?

It will be noted that appellant was not refused the right to call the respondent as a witness, but his motion was to be permitted to call him as a hostile witness and cross-examine him.

Section 675 of the Code expressly permits the examination of the adverse party, either at the trial, or conditionally, or upon commission. Section 676 of the Code makes provision for the "Examination of Adversary before Trial," and Section 677 of the Code provides a method of compelling the adverse party to attend for such examination, and permits the use of the testimony thus taken by either party to the trial. Section 678 of the Code permits "the examination of the party, thus taken," to be rebutted by adverse testimony. We refer to these Sections of the Code for the reason that appellant relies upon same for its position that it should have been permitted to call respondent as a hostile witness for the purpose of cross-examination.

We can well appreciate the dilemma in which appellant found itself when, on account of certain other allegations in the pleadings not necessary to set out herein, it was announced that respondent was closing his case without going upon the witness stand; and with no previous decision of this Court directly on the issue as raised, so far as we have been able to learn, appellant used due caution in refusing to call the adverse party (respondent) as a witness, especially in view of the opinion of the Court in Benbow v. Harvin, 92 S.C. 180, 186, 187, 75 S.E. 414, 417, wherein it is stated: "While a party who calls his adversary as a witness makes him his witness to the same extent that he makes any other person whom he calls as a witness, still he is no more concluded by the testimony of his adversary than he would be by the testimony of any other witness whom he might call. But just as in the case of any other witness, having called him, he may not impeach him or contradict him; but he may prove the facts to be otherwise than as he testifies them to be." Of course, the general rule is that a party who offers a witness cannot impeach or discredit him, but there are some exceptions, as for instance, where the witness is not of the party's own selection, but is one whom the law obliges him to call, such as the subscribing witness to a deed or a will or the like.

See Jerkowski v. Marco, 57 S.C. 402, 35 S.E. 750.

In State v. Nelson, 192 S.C. 422, 425, 426, 7 S.E.2d 72, 74, the general rule is stated as follows: "It is a well established rule of evidence that a party is not concluded by...