Opinion
12675
June 8, 1929.
Before MAULDIN, J., Aiken, December, 1927. Affirmed.
Action by Gary T. McClain against the Reliance Life Insurance Company of Pittsburgh, Pa. Judgment for plaintiff, and defendant appeals.
Following are the complaint, answer, and exceptions:
COMPLAINT"The plaintiff above named, complaining of the defendant above named, respectfully shows unto the Court:
"First: That at the times hereinafter mentioned the defendant was a corporation chartered and organized under the laws of a State other than South Carolina, licensed and authorized to carry on the business in South Carolina of selling and delivering life, health, and accident insurance in this State, and collecting the premiums or charges therefor.
"Second: That at said times the plaintiff was, and still is, a resident and citizen of Aiken County, South Carolina.
"Third: That at the times hereinafter mentioned the plaintiff was, and still is, a rural mail carrier on a route out of Jackson, Aiken County, South Carolina; and engaged in other lines of business.
"Fourth: That in the year of 1925, plaintiff engaged to receive a policy of insurance from the defendant; and the agent of the defendant, authorized to act in the premises, delivered to the plaintiff a policy; but not the kind of insurance desired or applied for by the plaintiff, and an effort on his part to exchange said policy for the kind applied for was duly made; and during the negotiations to make the change, the agent and representative acting for the defendant, within the scope of his employment and agency, pretended to say that he had paid the premium to the company personally, and that he had furnished to plaintiff the kind of insurance applied for by him; but plaintiff insisted that he had not received the insurance applied for, and inquired if any money had been paid to the defendant, and the status of his insurance generally.
"Fifth: That meanwhile on or about October 24, 1925, the defendant, acting through its agent and representative, the latter having general and full power to act for the defendant in the premises, issued, circulated, and published, of and concerning the plaintiff, the following false, malicious, defamatory, and libelous language, to wit:
"`Reliance Life Insurance Company of Pittsburgh, Pennsylvania, "`James H. Reed, President."`Augusta, Ga., Oct. 24, 1925.
"`Re: Gary T. McClain"`Mr. C.C. Chance, Postmaster, Jackson, S.C. ___ Dear Sir: First I wish to thank you for your assistance and at the same time apologize for the necessity of bothering you with this matter.
"`With reference to the indebtedness of the above please allow me to explain. During the month of June of this year I called on Mr. McClain for the purpose of offering him our service, which includes Life Insurance and Accident and Health Coverage. Mr. McClain stated that he was in need of this service and agreed to apply for a policy which would provide to pay so much cash immediately at death and then so much each month for ten years to Mrs. McClain and the children provided for in the event of his death. The contract also provided protection for accident or sickness. Mr. McClain was examined for this insurance and gave me his 60-day note for the quarterly premium of $74.85 which he assured me would be paid when due.
"`The policy came in and was delivered to Mr. McClain. When the note came due I was unable to get any response from Mr. McClain so made a trip to see him and succeeded in talking to him on the road near Ellenton, at which time he informed me that he had been expecting some money for road work and that he would pay me the amount due when this money was received. At this time I particularly asked him about the policy because if there had been any unsatisfactory conditions in connection with same I could have taken up the policy and canceled it at minor loss to myself, however, he told me positively that he liked the policy and wanted it, and that if I could wait until Sept. 5th he felt sure that he could pay the amount at that time. I agreed to this further extension which made it necessary for me to pay to my company the premium so that this protection would remain in force.
"`When Sept. 5th arrived I made several efforts to collect the amount, and after many broken promises on the part of Mr. McClain I again made special trip to Jackson to see him during the latter part of September, and it was then that he stated that he thought the policy was too much for him to carry at this time, and asked if I could have it reduced in amount. I agreed to do so and it was then that he gave me his check for $37.85 representing one-half the original note and as I explained to him would not quite cover the actual money I had expended in his behalf by keeping this protection in force for him.
"`It is indeed unpleasant for me to have to cause anyone trouble, but Mr. McClain has made me promise after promise, all to be broken, and I must say that I have never had dealings with a person who seemed to care so little for his word or obligations. His letter is a false representation of the facts and is the first time that he has intimated that he was not entirely satisfied and pleased with the policy.
"`I have been in the Life Insurance many years, and have hundreds of policy holders, and this is the first time that I have ever been accused of misrepresentation and I cannot allow these statements to go unrefuted. I do contend that Mr. McClain is indebted to me for $74.85 plus interest, representing protection that he has already had from my company and it is my purpose to pursue any means within my power to collect what is justly due me.
"`For Mr. McClain's benefit I will say that if he will arrange at once to pay me $37.85 which is represented by the check of Oct. 5th, and which is just about the amount of money that I have expended in his behalf, I will let the balance drop and will return to him his check, note and other papers bearing his signature.
"`Again thanking you, I am, "`Yours very truly, "`[Signed] Anderson Sibley, "`S/P General Agent.'
"Sixth: That the issuance, circulation and publication of the above-described language concerning the plaintiff, not only was false and defamatory, as aforesaid; but was the beginning of a well-defined plan to injure this plaintiff by the publication of injurious matter to the sendee of said letter and to others, amongst such persons being a representative of the Credit Men's Association of the community where plaintiff transacted a large part of his business; said letter, or the contents thereof, having been published by the defendant to said representative and to others with such intent.
"Seventh: That the issuance, circulation and publication of such language concerning the plaintiff charged and meant to charge (and it was so understood by those reading and hearing the same) the plaintiff with dishonesty in dealings and transactions with the defendant, and that plaintiff is utterly unworthy of belief, and is gifted to falsehood and misrepresentation. That said charges and language used concerning plaintiff's honesty and integrity and concerning the transaction, are false, malicious, defamatory and libelous, and hold the plaintiff up to scorn, contempt, ridicule, hatred, and derision, and reflected upon and injured the business, the good name, reputation, and character of the plaintiff to his great damage.
"Eighth: That the aforesaid language was not only injurious upon its face, but it had the effect (and the defendant was fully aware at the time it issued, circulated and published the same that such would be the consequence) of injuring plaintiff as aforesaid, and of making some of this defendant's creditors bear down upon him, and of making accommodations of a financial nature difficult for him to secure, and of causing him great loss in the operation of his private business affairs, of all of which defendant, its agents and representatives, had full knowledge at the time, all to the plaintiff's great damage in the sum of two thousand nine hundred and ninety-nine ($2,999.00) dollars.
"Wherefore: Plaintiff demands judgment against defendant for the sum of two thousand nine hundred and ninety-nine ($2,999.00) dollars, and the costs of this action."
ANSWER "FOR A FIRST DEFENSE"1. This defendant admits that it is a corporation under the laws of the State of Pennsylvania licensed by the Insurance Department of South Carolina to engage in business in this State and was such at the times mentioned in the complaint.
"2. Denies knowledge or information sufficient to form a belief as to the allegations of the second and third paragraphs of complaint.
"3. Denies each and every other allegation in said complaint contained.
"FOR A SECOND DEFENSE"That Anderson Sibley is, and at the times set forth in the complaint was, defendant's agent, in the City of Augusta, Georgia, and vicinity, to solicit applications for insurance on the lives of individuals, with or without accident and health features, all subject to approval in writing by this defendant, but for no other purpose whatsoever; and this defendant further alleges that no statements, written or oral, against plaintiff or his character have ever been made by it, or on its behalf or by any one with its authority and approval.
"FOR A THIRD DEFENSE"That the letter set forth in the complaint was written by Anderson C. Sibley in self-defense and without malicious intent to vindicate himself and his own business and interests and as an explanation and denial of charges made against him in the letter written by Gary T. McClain to C.C. Chance, Postmaster at Jackson, S.C. dated October 22, 1925 — the said Anderson C. Sibley then, and for some years previous, having been engaged in the life insurance business as a solicitor for applications in the City of Augusta, Georgia, and vicinity, including the territory in South Carolina nearby the City of Augusta, and having maintained and enjoyed during said times a good reputation for honesty and fair dealing as a solicitor for insurance and the persons from whom he solicited applications and those with whom he dealt having depended largely on his reputation for honesty and fair dealing as such a solicitor and in a letter dated October 22, 1925, addressed to C.C. Chance, Postmaster at Jackson, S.C. and received by him, the said Gary T. McClain wrote of and concerning the said Anderson C. Sibley `he led me to believe that I was getting a policy that would be a paid-up policy in twenty years, or if I did not bother the dividends it would be paid up in fifteen years, but after getting the policy I read it over and the policy was a policy which I would have to pay on as long as I lived' meaning to say that the said Anderson C. Sibley had deceived him and intending by the use of said language and the publication of the same to injure the good name and reputation of the said Anderson C. Sibley in that community and to cause his business to suffer as a consequence, when as a matter of fact the policy received by Gary T. McClain was exactly the kind he applied for in writing over his own signature and the note he gave Anderson C. Sibley and E. H. Clark was not paid at its first or at the extended maturity and the check given in part payment was not paid by the bank."
EXCEPTIONS"You will please take notice that the defendant excepts to, and appeals from, the judgment in the above action and the rulings of the Court, upon the following grounds, to wit:
"1. That the Court erred in admitting the letter quoted in the complaint over defendant's objection; the error being that there was no evidence showing or tending to show that the letter was written and published by the defendant or that Sibley was authorized to write and publish the same for or on behalf of defendant or that Sibley was acting within the scope of his employment in writing and publishing the letter.
"2. That the Court erred (a) in refusing defendant's motion to strike out that letter and (b) in refusing to direct a verdict for defendant for the reasons stated in the first and second grounds of defendant's motion to direct a verdict and (c) in leaving it for the jury to decide whether the defendant was responsible for that letter; the error being that the uncontradicted evidence is that the letter was written and published by Sibley in his individual capacity concerning his individual business and that the defendant was in no way responsible for the writing and publication of the same, and that such an act was not within the scope of Sibley's duties as defendant's agent as a solicitor for applications for insurance.
"3. That the Court erred in leaving it for the jury to decide whether the language of the letter was or was not libelous per se; the error being that it is the duty of the Court in the first instant to decide that question.
"4. That the Court erred in not holding that the letter was not libelous per se; the error being that the language thereof is neither defamatory nor libelous; and in any event the language is susceptible of a harmless meaning even though it may be said to have an injurious meaning, consequently, not libelous per se.
"5. The Court erred in refusing to direct a verdict in favor of the defendant for the reasons stated in the fourth, fifth and sixth grounds of defendant's motion to direct a verdict; the error being that inasmuch as the language of the letter is not libelous per se and inasmuch as that there is no evidence of any facts or circumstances which would make the language of the letter actionable, or give to the same any defamatory or libelous meaning, and no evidence of special damages sustained by plaintiff, the Court should have directed a verdict in favor of defendant.
"6. The Court erred in leaving it to the jury to decide whether Sibley was exercising his privilege under the law in writing the letter quoted in the complaint and erred in refusing defendant's motion for a directed verdict for the reasons stated in the third and seventh grounds of its motion; the error being that the uncontradicted evidence is that Sibley acted in good faith and without malice in writing and publishing the letter and the language of the letter was so understood by the addressee of the same.
"7. That the Court erred in admitting the letters of Oct. 19, 1925 (Ex. 1), Sept. 9, 1925 (Ex. 4), and telegram by Lester (Ex. 12) over defendant's objection; the error being that there was no evidence to connect defendant with the same as is more fully set forth in the first exception. And erred in refusing to strike out those letters; the error being that the undisputed evidence showed that defendant was not responsible for the same as is more fully set forth in the second exception.
"8. That the Court erred in admitting the telegram of Dec. 12, 1925 (Ex. 7), and letter of June 3, 1926 (Ex. 8), over defendant's objection; the error being that they were irrelevant for the reason that they were communications after the date of the letter quoted in the complaint.
"9. That the Court erred in permitting the postmaster's son and clerk to testify, over defendant's objection, that he read the letter; the error being that reading the letter under such circumstances was not publication and was privileged, and, further, defendant was not responsible for same.
"10. That the Court erred in admitting testimony that Sibley dictated the letter to his stenographer for the purpose of showing publication to her; the error being that dictating to the writer's private secretary and stenographer is not publication.
"11. That the Court in charging the following portion of plaintiff's 5th request, `that the principal is responsible for the acts of his agent and the conduct of the agent is binding on the principal although he may have transcended his authority or violated his instructions'; the error being that such was not a correct statement of the law and is in conflict with other portions of the charge instructing the jury that the principal is only liable for the acts of the agent when the agent is transacting the principal's business and acts within the scope of his authority.
"12. The Court erred in refusing defendant's 4th and 8th requests, to wit:
"`The foundation of an action for defamation is the injury done to reputation; and injury to feelings is not sufficient to justify a recovery.'
"`There is no evidence showing or tending to show any malice, actual or constructive, on the part of the writer in writing the letter set forth in the complaint.'
"13. That the Court erred in refusing to grant a new trial on the ground that the evidence was wholly insufficient to support a verdict for plaintiff for the reasons stated in the written grounds submitted."
Messrs. Edward L. Craig, and Herbert E. Gyles, for appellant, cite: As to acts outside of apparent scope of employment: 120 S.C. 511; 24 A.L.R., 129; 71 Atl., 962; 24 L.R.A. (N.S.), 95; 71 Atl., 517; 83 A.S.R., 225; 29 So., 498; 132 S.C. 193; Id., 213. As to statements in self-defense: 17 R.C.L., 364; 131 S.C. 490. "Libel and Slander": 116 S.C. 77; 76 S.C. 511; 129 S.C. 251; 83 Pac., 573; 116 A.S.R., 796; 134 S.C. 276; 3 Brev., 480. "Libel per se": Townshend, Sl. L. (4th Ed.), 146, 147; 33 S.W. 568; 18 A. E. Enc. L. (2d Ed.), 916. 3 L.R.A. (N.S.), 341; 42 L.R.A. (N.S.), 516; 9 L.J. Exch., 62; L.R., 9 C.P., 118; 3 Atl., 890; 116 A.S.R., 796; 57 N.W., 734; Newell on Sl. L. (4th Ed.), 138; 25 Cyc., 253. Function of Court: 17 R.C.L., 425; 5 A.L. R., 1349; 141 S.C. 51; 134 S.C. 276; 130 S.C. 533; 129 S.C. 242; 116 S.C. 77; 114 S.C. 48; 76 S.C. 510; 54 S.C. 100; 129 S.C. 249; 10 Rich., 128; 1 Bail., 595; 250 U.S. 290; 63 U.S. 987; 17 R.C.L., 263; 37 A.L.R., 887; 55 A.L.R., 72; 80 Mo., 367; 75 Ala., 158.
Messrs. Williams, Croft Busbee, for respondent, cites: Superior respondent applies to libel or slander published by agent: 17 R.C.L., 380; 82 S.C. 315; 99 S.C. 466. As to libel and slander: 136 S.E., 23; 76 S.C. 513; 115 S.E., 904; 113 S.E., 332; 63 S.C. 530; 36 C.J., 1167, 1225; 120 S.C. 70; 17 R.C.L., 316.
June 8, 1929. The opinion of the Court was delivered by
This was an action by the plaintiff, Gary T. McClain, against the defendant, Reliance Life Insurance Company of Pittsburgh, Pa., for an alleged libel based upon a letter set forth in the complaint reported herein. The plaintiff alleged in part that he was a rural mail carrier in the employ of the United States government, and that the defendant, acting through its agent, one Anderson Sibley, wrote and published the letter in question to C.C. Chance, the postmaster at Jackson, S.C. under whom it is admitted the plaintiff was working at the time of the alleged publication.
According to the testimony, the plaintiff was approached by Anderson Sibley and one Clark with reference to the taking out of a certain insurance policy with the defendant company, and, according to the contention of the plaintiff, the type of policy which was delivered, and for which his note and check were given, was entirely different from the type of policy which it was represented to him that he would receive. The note, and later a check for one-half of the amount of the note, were given, and since the policy was not in accordance with the representation made at the time of the taking of the application, according to plaintiff, he returned the policy to the agent of the defendant company. According to the testimony of the defendant's witnesses, the policy delivered was the policy ordered by the plaintiff, but was found by the plaintiff to exceed his requirements, and therefore was returned for the purpose of exchanging it for a smaller policy. These transactions with reference to the policy and the application all occurred in June of 1925, and the note was given, admittedly, in June, 1925, to be due in August, 1925. The check in question was given on October 3, 1925, and is marked "one-half of note due September 5, 1925." It will be seen that the note had evidently been extended to September 5, 1925. On October 10, 1925, Sibley attached the check to a draft on the Bank of Western Carolina at Aiken, S.C. upon which the check had been drawn. This check and draft were returned by the Aiken Bank soon thereafter unpaid. On October 19, 1925, a short time after the draft was returned, Sibley wrote the postmaster at Jackson upon the stationery of the defendant company, which stationery carried his name as general agent, about the account in question, claiming that the same had not been paid. This letter was referred by the postmaster to McClain, the plaintiff, for an explanation. On October 22, 1925, McClain wrote the postmaster a letter in which he gave his side of the controversy, which letter was transmitted by the postmaster to Sibley. Then followed on October 24, 1925, the letter which forms the basis of this libel action. On October 7, 1925, McClain, the plaintiff, had been notified that his policy was null and void on account of failure to pay the premium and on December 16, 1925, a telegram was sent by the defendant company to the effect that the policy was void; the first premium never having been paid. On June 3, 1926, a letter was sent to the plaintiff's attorneys, stating that the premium on the policy had never been paid. The above facts are necessary to a full understanding of the case.
The exceptions are thirteen in number, but a single question is covered by more than one exception, and only the question raised will be discussed.
The first question, covered by exceptions 1 and 2, alleges error on the part of the Circuit Judge in admitting the letter in question and in refusing to strike the same out, on the ground that the same was not the act of the defendant company, and that Sibley in the writing and the publishing of the letter was not acting within the scope of his authority as an agent of the defendant company. Agency was a question of fact in this case, and there was ample evidence to go to the jury if the jury believed it, namely, that Sibley was acting at the time mentioned within the scope of his authority as an agent of the defendant company. Sibley was designated as general agent on defendant's stationery; he signed the letters in question upon the stationery of the defendant as general agent; admittedly, he solicited the insurance in question, took the note for the premium, took the check in part payment of the note, and wrote the letter in question while attending to the general business of the defendant company. This conclusion is heightened by the fact that the company denied ever having received the money from Sibley, although he claimed in his letters that he, and not the company, was the financial loser by the transaction. These facts made it an issue for the jury to determine, under proper instructions from the Court, whether at the time Sibley was the agent of the defendant company, and whether or not he was acting within the scope of his authority as such agent. Had there been no conflicting evidence in the case, the question of agency might have been resolved into a question of law; but the testimony was conflicting, and there was ample evidence to sustain the finding of the jury on the question. Hypes v. Southern Railway Co., 82 S.C. 315, 64 S.E., 395, 21 L.R.A. (N.S.), 873, 17 Ann. Cas., 620; Mann v. Life Casualty Ins. Co., 132 S.C. 193, 129 S.E., 79.
Exceptions 3, 4, and 5 allege error on the part of the Circuit Judge in failing to declare the letter not to be libelous per se and in leaving to the jury the question of the character of the letter. It has been held by this Court that, where the words written or spoken are libelous or slanderous per se, it is the duty of the Judge to so declare and leave the other issues in the case to the jury. It has further been held that, where the words written or spoken are susceptible of more than one meaning, it is proper for the Circuit Judge to leave it to the jury as to whether the meaning is defamatory or innocent, taking into consideration all of the circumstances surrounding the entire transaction. Williamson v. Askin Marine Co., 138 S.C. 47, 136 S.E., 21; Black v. State Co., 93 S.C. 467, 77 S.E., 51, Ann. Cas., 1914-C, 989.
The rulings of the Circuit Judge in this respect were more favorable to the appellant than it was entitled to. The words written in effect charged the plaintiff with dishonesty, failure to keep his word, and with false representations; such charges are libelous per se, for they not only imply dishonesty and unfair dealing, but they actually charged the plaintiff with false representation and fraud in connection with the transaction. Hubbard v. Furman University, 76 S.C. 513, 57 S.E., 478; Riley v. Askin Marine Co., 134 S.C. 198, 132 S.E., 584, 46 A.L.R., 558.
The sixth exception complains of error in the Circuit Judge in not holding that the communication of Sibley was privileged under the circumstances and that Sibley was acting in good faith and without malice in writing the letter. The exception cannot be sustained for the reason that Sibley wrote the letter to the person upon whom it was calculated to exert the greatest influence, to wit, the immediate superior of the plaintiff. He wrote the letter immediately after receiving the letter of the plaintiff in which the plaintiff set forth his side of the transaction, denied by Sibley, at a time when he was, to use his own expression, "riled." He wrote the letter to the postmaster with the avowed purpose of forcing the plaintiff in this case to pay the debt and that he be reprimanded, suspended, or discharged by the government. The question of malice was one for the jury and was properly submitted to the jury.
The seventh and eighth exceptions of the appellant have reference to the introduction of certain letters and a telegram concerning the transaction. The defendant, by its answer, pleaded justification on the part of Sibley in the writing and publishing of the letter in question. It was the duty of the trial Judge to send to the jury all matters relative to the transaction and relevant to the issue. These letters and this telegram were all a part of the correspondence between the defendant, Sibley, Chance, the postmaster, and the plaintiff, and there was no error in their admission.
The ninth exception complains of error in permitting the son of the postmaster to testify, over the objection of the defendant's attorney, that he read the letter in the post office where he was a clerk. This exception is without merit, for the reason that the sending of the letter to the postmaster was publication thereof; and the above testimony was competent to show that the letter had come to the notice of others. In passing it will be noted that the letter in question was sent to C.C. Chance, postmaster, and was not marked confidential or personal. The agent of the defendant should have known that the letter would be opened by any official in the post office, inasmuch as it was sent to the head of the office in his official capacity and not simply to Chance personally. It concerned the defendant's business with Chance as postmaster in connection with a matter subject to his authority as postmaster.
Exception 10 complains of the ruling of the presiding Judge with reference to Sibley's dictation of the letter to the stenographer. The trial Judge allowed this evidence in for what it was worth, and no attempt was made by the plaintiff to claim the publication through this source. This question bore also on the fact as to whether or not Sibley was acting as agent for the Reliance Life Insurance Company. There was no error in the Circuit Judge allowing this testimony.
The eleventh exception complains that the trial Judge charged one of the plaintiff's requests, but, considering the entire charge the Judge gave a correct and fair statement of the issues before the Court and gave the jury a correct guide to reach a conclusion. And there was no error in charging this request.
The twelfth exception complains of the refusal to charge two specific propositions requested by the defendant. Both were properly refused by the Circuit Judge. The law is, in an action of libel or slander, that humiliation, wounded feelings, injury to reputation, and many other elements, are a proper basis for damages, and the Judge fully covered those elements in his charge. The request of the defendant was too limited in its scope. The second request complained of was clearly a charge upon the facts.
The thirteenth exception alleges error in the refusal of the trial Judge to grant a new trial. This is a matter which is within the discretion of the trial Judge, and, unless there is some error of law, will not be disturbed by this Court. There was ample evidence to sustain the verdict, and the trial Judge properly refused to grant a new trial.
All exceptions are overruled, and the judgment of the lower Court is affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER, and CARTER concur.
MR. CHIEF JUSTICE WATTS did not participate.