Opinion
12598
February 20, 1929.
Before Townsend, J., Sumter, January, 1926. Affirmed.
Action by J.T. Green against W.D. Smith and others. From an adverse judgment, defendant named and others appeal.
The charge to the jury, exceptions, and order of the Circuit Judge refusing the motion for new trial were as follows:
JUDGE'S CHARGE TO THE JURY"Mr. Foreman and Gentlemen of the Jury:
"The plaintiff is asking for damages against the defendants on the ground that the defendant, Smith, was the agent of the defendant, Life Casualty Insurance Company of Tennessee, and as such agent, and acting in the scope of his authority and agency, and for the purpose of injuring plaintiff in his business as an insurance agent, and to have revoked his license to act as an insurance agent in the same section of the State in which both plaintiff and said defendants were competitors, seeking to insure certain of the public, in order that defendants might put and keep plaintiff out of the insurance business, and take over his business for themselves, and in furtherance of the business of the Life Casualty Insurance Company, began circulating among certain policyholders, whose policies had been theretofore written by plaintiff in the Life Casualty Company, and maliciously induced some of such policyholders to sign affidavits, which the defendants knew were false, to the effect that plaintiff was making false statements to such policyholders, charging the Life Casualty Insurance Company with robbing its policyholders, and stating that its rates were too high, and that its employees were dishonest, and that the plaintiff could not sleep at night for thinking about the policies he had sold for said Life Casualty Insurance Company; and that all the statements in said affidavits concerning plaintiff were false, that defendants knew they were false and maliciously obtained and used said false affidavits for the purpose aforesaid, and for the purpose of injuring the plaintiff in his business; and plaintiff further claims that defendants, by the malicious use of said false affidavits, has injured plaintiff by preventing him from obtaining employment as an insurance agent, and has caused him loss of time and labor in defending himself against such charges before the Insurance Commissioner; and has caused him physical injury and mental worry and anxiety connected therewith and growing out therefrom.
"The case has been dismissed as against the Durham Life Insurance Company, and you are to try it only as against the defendants, Smith and the Life Casualty Company of Tennessee.
"The defendants Smith and the Life Casualty Company admit that the latter is and was an insurance company, and that Smith was its Superintendent and agent residing in Sumter, and deny the other allegations of the complaint, and further answering the complaint, said defendants allege: (Reading paragraph two and three of amended answer.)
"The plaintiff is not claiming any damages on the ground that he has been libeled by either of the defendants, so you need not consider whether or not plaintiff has been libeled; no damages are to be allowed in this action on account of a libel.
"Any malicious interference with the business or occupation of another, if it is the proximate cause of damage, is an actionable wrong. Such interference may be by a single individual or corporation, or by a number of individuals or corporations conspiring together, but it is the injury or damage maliciously caused, which constitutes the gist of the action; and not the conspiracy, the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. The claim of the plaintiff is based on a willful or wanton or malicious tort, and the plaintiff should not recover any damages unless he has proven by the greater weight of the evidence that he has been injured as alleged in the complaint by one or the other of said two defendants willfully or wantonly or maliciously procuring from Celia Butler or Abe Butler one or both of the affidavits purporting to be signed by each of them, which have been introduced in evidence and that he or it knew at the time he or it took such affidavit that the statement contained therein was false, and that the person signing such affidavit as affiant did not know the contents thereof and was not swearing to the statements therein contained as the truth; and by defendants maliciously using such false affidavit in a proceeding before the Insurance Commissioner for the purpose of procuring the revocation of plaintiff's license as an insurance agent.
"An insurance company has an absolute right to decline or refuse to employ anyone seeking employment, but it has no right to willfully or wantonly or maliciously do a wrongful and malicious act to prevent an applicant for employment from obtaining employment by another. Every person has a right to seek employment, and to follow any occupation for which he may be fitted without malicious interference from anyone else. No combination of persons or corporations have a right maliciously to deprive another person of the right of making a living or pursuing a business for which he is fitted. An act is malicious when it is done with conscious knowledge of another's right, and with an intent knowingly and consciously to interfere therewith. It is a wanton and conscious and intentional interference with the known rights of another. Malice in law means a deliberate purpose to injure another without just cause or excuse — an intention to wrong another unjustly. A willful act is one done intentionally in violation of the known rights of another. A wanton act is one done in conscious disregard to the known rights of another or to the probable effect of such wrongful act upon others or their rights. No one has a right to injure another in the exercise of his right to obtain employment, unless he can show that his own legitimate interest requires such action. No man or corporation can justify a malicious interference with another man's business by or through false representations, willfully and maliciously made.
"A conspiracy is a combination of two or more persons or a person and corporation by concerted action to accomplish an unlawful purpose or wrong, or some purpose not in itself wrong or unlawful by the use of wrongful and unlawful means. If two or more persons or a person and a corporation enter into an agreement or understanding, express or implied, to wrongfully injure another person, to prevent his obtaining employment by those who may wish to employ him, or to wrongfully cause a license to do business held by him to be revoked, between two or more persons or a person and a corporation, such agreement or understanding would be a conspiracy. A single person, no matter how many corporations he may represent, cannot conspire with himself alone as an individual, so as to make any company he represents liable because of a conspiracy. In other words, there must be more than one mind actually engaged in such conspiracy. A single agent cannot conspire with himself as an individual so as to make him and the corporation represented by him, guilty of a conspiracy; and plaintiff now admits that no conspiracy by defendants has been proven in this case. It does not necessarily follow, however, that a failure on the part of the plaintiff to produce evidence of, or to prove, a conspiracy entitles the defendant to a verdict; for a corporation would be liable for the wrongful and malicious act of any one of its agents and servants, while acting as such agent in the scope of its actual authority and agency, and in the furtherance of its business, if such malicious act caused injury to another. Knowledge of an agent is in law knowledge of and notice to his principal, or to the company employing him as its agent. Notice to an agent or to a corporation employing such agent, which, if pursued, would have led to actual knowledge, charges a corporation with knowledge.
"As a general rule averment and proof that an act was done in pursuance of a conspiracy does not change the nature of the act, nor add anything to its legal force or effect. If a plaintiff fails to prove a conspiracy or concerted design, he may yet recover damages against one or more of the defendants, if such defendant or defendants is shown by evidence to be guilty of doing a malicious wrong to the plaintiff without such agreement, concerted action or conspiracy. The charge of conspiracy, if unproven, may be considered as mere surplusage, and not necessary to be proven; if it should be proven that the defendant, Smith, while acting in the scope of his authority as agent of the defendant. Life Casualty Company of Tennessee, and, in furtherance of its business, maliciously procured false affidavits to be made by either Celia or Abe Butler, and knowing such affidavits to be false, maliciously used them to procure a revocation of plaintiff's license as an insurance agent by the Insurance Commissioner. It would not be either unlawful or a wrong for an insurance company to decline or refuse to employ, in the same territory in which he had been employed by another company, one who had recently been in the employ of another, until after the lapse of six months from the time he quit the former employment, if it deemed such employment within such limited period detrimental to its business; and even if an agreement has been proven between two or more insurance companies not to employ former employees of the different companies in the same territory within six months after such employment ended, it would be perfectly legal and could create no liability whatever.
"A proximate result is one naturally following from an act, which is calculated to produce it, without the interference of an independent and efficient agency not under the control of the original actor; and which agency was not such as should have been foreseen or anticipated by the original actor.
"A corporation is liable for the wrongful and malicious acts of its agent, while acting as such agent in the scope of his authority or agency, and in the furtherance of its business; but not for acts of its agent done without its authority or not in the course of his agency, or not done in the furtherance of the business of the corporation.
"If an insurance company has reasonable ground for believing that an insurance agent licensed by the Insurance Commissioner is abusing his trust, or wrongfully or unfairly interfering with its business, it would have the right, and it would be its duty to report such wrongful or unfair conduct to the Insurance Commissioner for investigation by him, and to furnish any evidence it could honestly obtain in support of such report; and if such Commissioner found such report to be true, it would be his duty to revoke the license of any agent so wrongfully or unfairly acting in the conduct of the insurance business. And any report so made to the Insurance Commissioner in good faith, upon reasonable grounds or probable cause, and without malice, even if it should prove to be untrue, would create no liability on the part of the person or corporation making such report, to the agent so reported. But if an insurance company or other person, in bad faith, maliciously and without probable cause, should make a false report against an agent in order to injure him in his business or obtain a revocation of his license, it or he would be liable to such agent for any damage thereby proximately caused to him.
"Any insurance company or other person cannot be held liable in damage for a false report made to the Insurance Commissioner with regard to an insurance agent for the purpose of having the conduct of such agent investigated by the Commissioner, unless the person making such report had no probable cause for so doing, or knew it to be false, and acted maliciously in making such report.
"I charge you that the laws of this State furnish a method by which the testimony of a witness outside the State may be taken and read in the trial of a cause in this State, and that any such testimony is entitled to the same weight as if the witness were present and testified in person.
"The plaintiff has introduced two affidavits purporting to be signed and sworn to before L.E. Wood, Notary Public, on August 25th, 1921, by Abe and Celia Butler, and he contends that the said Abe and Celia Butler did not make the statements contained in said affidavits, and he has placed them upon the witness stand and they have testified in your hearing, and the plaintiff contends that these witnesses did not make the statements contained in said affidavits before or at the time said affidavits were taken, but that they then made a very different statement, and plaintiff contends that the Butlers signed these affidavits not knowing their statements had been incorrectly recorded. This is the issue for you to determine. If you shall find that the said Abe and Celia Butler made the statements contained in these affidavits, and these statements were written down and read over to them and signed by them, you must find for the defendants; unless you find that the defendant maliciously procured and used these affidavits, knowing at the time that they were false, in order to injure, and thereby injured the plaintiff.
"In passing upon the question of whether Celia and Abe Butler did make the statements contained in said affidavits, I charge you that the fact that they signed and swore to these affidavits, if shown by the evidence, raises a presumption that they knew the contents of same, and understood same and intended to put out these affidavits as being correct; but such presumption is rebuttable, and may be rebutted or disproved by evidence showing the contrary.
"In order for you to find any verdict for the plaintiff, you must find with respect to the affidavits in question either that the parties who signed and swore to the affidavits did not tell those who procured the same the statements that were written in such affidavits, or that the parties who procured the said affidavits did not, before said affidavits were signed and sworn to, inform the signers of the affidavits what was written in them. In other words, unless you find that the parties procuring the affidavits fraudulently and maliciously induced the signers of said affidavits to make false affidavits, then you must find a verdict for the defendants.
"I charge you that it is entirely immaterial if the plaintiff made the statements contained in the affidavits of Celia and Abe Butler, and that it is also immaterial if the statements contained in the affidavits of Celia and Abe Butler are true or false, if the jury believe that Celia and Abe Butler made such statements to the parties who procured the affidavits and signed the said affidavits knowing their contents, and if you so find, your verdict must be for the defendants; unless the defendant maliciously procured the making of such affidavits, and, at the time he produced them, they knew the contents of such affidavits were false, and knowing such affidavit to be false, maliciously used it to injure and did thereby injure the plaintiff.
"The defendants had a right to complain to the Insurance Commissioner as to the conduct of plaintiff, J.T. Green, and had a right to secure affidavits in support of their complaint. And it does not matter whether the parties making the affidavits swore truly or falsely, the defendants could not be held liable, provided that they did not knowingly and for a malicious purpose secure affidavits and use which they knew to be false. The defendants had the right to go to Celia and Abe Butler and secure their affidavits to be presented to the Insurance Commissioner, and they cannot be held liable in this case; unless the affidavits of the said Celia and Abe Butler were false, and unless you further find that the defendants knew these affidavits to be false.
"I charge you that even if you find that the defendants procured the affidavits which are in evidence, and that at the time such affidavits were procured the defendants believed the contents thereof to be true, even though later such affidavits were shown to be false, then there was no malice on the part of the defendants in procuring the said affidavits, and your verdict must be for the defendants.
"Even if you find that the statements contained in the affidavit of Celia Butler were not made by her, and that her affidavit and that of Abe Butler are false, yet if you find that there are other unimpeached affidavits or other competent testimony to the same effect, then it is immaterial whether Celia Butler's affidavit is true or false. A mere denial by the plaintiff of the statements contained in the affidavits of Henry Brown, Fannie Anderson and Winnie Williams is not sufficient, the plaintiff must go further and establish by competent evidence that the defendants maliciously procured and submitted to the Insurance Commissioner affidavit or affidavits which were false, and which were known to be false by the defendants if they procured the same, and that at the time such affidavits were procured and submitted to the Insurance Commissioner, and that such affidavit or affidavits were so maliciously procured and used by the defendants. Unless the plaintiff establishes such facts by the greater weight of the evidence, your verdict must be for the defendants.
"I charge you that the affidavits procured by the defendant Smith in this case for use before the Insurance Commissioner were qualifiedly privileged; and there can be no recovery on account of procuring and publishing said affidavits unless it was done maliciously; and I charge you that it is necessary for the plaintiff to prove by the greater weight of the evidence that said affidavits were actuated or procured by actual malice, and failing so to prove, your verdict must be for the defendants. Actual malice is defined to be: that condition of mind which prompts one to do a wrongful act intentionally without legal jurisdiction or excuse.
"I charge you that the plaintiff in this case can recover as his actual damage only such damages as were proximately caused by the alleged wrongful acts of the defendants; that is, damages that naturally followed such wrongful acts, and without which there would have been no damage. Such damages must be reasonably certain of computation, and not such as can only be reached by speculation or conjecture; and must be based on the testimony and evidence before you in this case.
"I charge you that the only acts on which the liability of the defendant Life Casualty Company to the plaintiff can be based are the alleged acts of the defendant, W.D. Smith. If you find that the defendant, Smith, is guilty of the unlawful acts charged in the complaint and that in doing such acts he was acting within the actual scope of his agency for the defendant, Life Casualty Insurance Co., your verdict must be against both defendants; if, however; you conclude that the defendant, Smith, is guilty of the unlawful acts charged, and that such acts were beyond the actual scope of the agency of the said defendant, Smith, then your verdict must be against the defendant, Smith, alone.
"I charge you that the law in this State is that `A principal cannot be held liable in damages for the tort of his agent unless the agent was at the time acting within the actual scope of his agency,' and if you find that the defendant, Smith, was not acting within the actual scope of his agency, or had not been authorized or instructed by the defendant, Life Casualty Company, to procure the affidavits in evidence, then you must find a verdict in favor of the said Life Casualty Insurance Company.
"In order to recover any verdict against either defendant, Smith or the Life Casualty Insurance Company, the plaintiff must first prove by the greater weight of the evidence that such defendant was guilty of maliciously procuring a false affidavit, which such defendant knew was false, charging the plaintiff with improper conduct as an insurance agent, and that such malicious and false affidavit or affidavits were maliciously used by such defendant for the purpose of procuring a revocation by the Insurance Commissioner of Green's license, or of putting or keeping plaintiff out of the insurance business, or insurance field, in and around Sumter, in which field or territory the plaintiff had been formerly employed as an insurance agent by the defendant, Life Casualty Insurance Company of Tennessee; and that such malicious conduct of such defendant has proximately caused some actual injury to the plaintiff.
"If either of the defendants has maliciously injured the plaintiff by maliciously obtaining a false affidavit, and by maliciously using such false affidavit, knowing it to be false, in proceedings before the Insurance Commissioner, for the purpose of procuring a revocation of plaintiff's license to act as an insurance agent, and has thereby caused some actual injury to plaintiff, then, in determining the actual damages, if any, caused by such malicious injury, you could take into consideration any evidence as to loss of time, or labor expended by plaintiff, if any so caused, or as to the effect, if any, of such malicious act upon the physical condition of plaintiff, and if such malicious conduct caused the plaintiff any physical injury you could also take into any consideration such physical injury and any mental worry or anguish immediately connected with and growing out of such physical injury, if such physical injury was proximately caused by such malicious conduct on the part of such defendant or defendants; and where any actual injury or damage is done to another by a malicious act or conduct of a defendant, or of an agent of a defendant acting in the scope of his actual authority or agency, and in furtherance of the business of such defendant, his principal, then the jury may give to a plaintiff so injured, in addition to actual damages, what is called punitive damages; that is, such damages as would vindicate any private right which may be shown by the evidence to have been maliciously interfered with, if such malicious interference and injury has been proven, as would punish the wrongdoer for such malicious act, if committed by him, and as would serve as a warning to others. The burden of proof is upon the plaintiff to prove by the greater weight of the evidence such facts as I have stated would entitle him to recover damages.
"If you find under the law as I have stated it in this charge, as applied to facts which you may find from the evidence, that the plaintiff is entitled to recover damages against both defendants, the form of your verdict should be, `We find for plaintiff so many dollars' — stating the amount — `Damages.' If you find against only one defendant you must specify in your verdict by name which one; and also state that you find in favor of the other defendant by name, if you find in favor of one of them. If the plaintiff has failed to prove that he is entitled to recover any damages, or the defendant has proven its affirmative defense, the form of your verdict should simply be, `We find for defendants.'
"Now write whatever verdict you find on this paper marked `Summons for Relief.'"
ORDER REFUSING MOTION FOR A NEW TRIAL"It appeared from the evidence: that the plaintiff had been for some continued period in the employ of the Life Casualty Company above named as a canvassing and collecting agent, working in Sumter, S.C. under the defendant, Smith, as its district superintendent. On 23rd July, 1921, plaintiff severed his relation to the defendant company, and on 25th or 26th of July, 1921, entered into the employment of the Liberty Life Ins. Co., of Greenville, S.C. to work as an insurance agent in the same territory in which he had formerly worked for the defendant company. The first week after plaintiff began working for the Liberty Life Ins. Co., the defendant Smith told him, that one, C.B. Preacher, had reported plaintiff was knocking his business, and that one Winnie Williams had said so. Plaintiff denounced the report as a lie, and offered to go with Smith to see the parties and demanded that they prove such charges; and Smith declined to have plaintiff go; saying he did not believe `Preacher's lies.'
"Some time in August, 1921, prior to the 22nd, the secretary of the defendant company wrote the Insurance Commissioner of South Carolina to the effect that the plaintiff was disturbing its policyholders in and around Sumter, and asked an investigation by the Commissioner of plaintiff's conduct; and the Commissioner agreed with the secretary of the defendant company, to send a deputy, Mr. Allen, to investigate the matter; and wrote plaintiff asking him to explain the charges made against him. On the 24th August, Smith wrote the secretary of his company complaining of the Insurance Commissioner's delay in sending his deputy, and repeating the charges against plaintiff, and urging the necessity of stopping plaintiff in the soliciting of insurance in that district, which letter was on the 26th forwarded by the secretary to the Insurance Commissioner. Just about that time the commissioner's deputy, Mr. Allen, went to Sumter to investigate, and went with Smith to various parties, whom Smith had theretofore seen, and took affidavits, which Smith had theretofore prepared, from the parties visited, making charges against plaintiff; and at the same time, and as a consequence of the charges made in the affidavits so secured, the deputy on the 26th of August told plaintiff that his license to act as an insurance agent would probably be revoked. One Taylor, testified that about this same time, in August, 1921, while he was working under him, as a canvassing agent in Manning, S.C. Smith told him plaintiff was knocking his business and that he had instructions from his company to get affidavits against him, and that he wanted Taylor to get them regardless of cost, in any way he could, and if necessary to give the affiants credit for them on account of premiums due. Numbers of affidavits were obtained by Smith, or through his activity, and filed with the Insurance Commissioner or his deputy to support the charges. The investigation was continued by the Insurance Commissioner with more or less diligence until in the early part of October, 1921, when he dropped the matter without making any formal order.
"Among the affidavits obtained and filed with the Insurance Commissioner at the instance of Smith were two by Celia Butler and her husband, Abe, negroes of ordinary temperament and intelligence. Celia testified on the trial before me, that plaintiff was the first person to see her after his change of companies, that he solicited her to give him new insurance, but said nothing against the defendant company. That during the following week Smith came to see her and inquired about plaintiff's visit and his soliciting her for insurance. That after their conversation, Smith inquired whether she would be willing to sign a paper he had and she replied, `Yes, with the greatest delight.' That Smith asked her whether Green did not tell her he could not sleep at night for the way the Tennessee Company was stealing and robbing the people, charging too much for insurance, and she replied. `No, sir, he ain't told me about no stealing.' Later Smith came back with the typewritten affidavit, which she signed, along with Crawford, an insurance agent, Mr. Allen the deputy Insurance Commissioner, and Mr. Wood, a Notary Public and an attorney of this Court, to get her to sign it, and that she signed it. This is the affidavit introduced in evidence. Celia admits signing it, but denies that she made the statements therein contained, the substance of which alleged statements are denied by her testimony on the trial before me as well as by the testimony of the plaintiff. Celia denies having told Smith or any one else the facts stated in this affidavit, and denies that the affidavit was read over to her, and that she knew these statements were in it when she signed it. I have known Mr. Wood, the notary who took the affidavit, to be a gentleman of high character, and have been with him on circuit while he was stenographer of the third circuit, and I know he would not consciously be a party to mislead an affiant in making an affidavit, and I believe that he read over the affidavit to Celia, and added a line thereto in accordance with what she told him before he signed it or let her sign it before him. I do not know anything about the character of Smith, who had part in the preparation of the affidavit, further than shown by the evidence before me on this trial.
"The jury had abundant evidence to sustain their finding that the charges made against plaintiff in this affidavit were untrue, and that Smith either then knew them to be untrue, or had no reasonable ground for believing them to be true, and did not believe them; and that Smith acted maliciously in procuring this affidavit for the purpose of securing the revocation of plaintiff's license as an insurance agent, and of furthering the business of the defendant company, and that in so maliciously acting, Smith acted within the scope of his authority as agent of the defendant company. Smith may have been guilty of fraud as alleged in the complaint without either Mr. Wood or Mr. Allen discovering it; and the jury probably found that although Celia signed the affidavit before Mr. Wood, she did not then know, appreciate, or understand its contents; and that Abe while ready to second whatever his wife said, had forgotten his signing the affidavit before Mr. Wood, and all circumstances connected with it.
"While I would have attached less weight to the testimony of Celia and Abe than the jury has done, and so have found a different verdict, the case was one for submission to the jury, and their finding is not against the manifest weight of the evidence. And following the practice of Judge Gage, in Wright v. C. W.C. Ry. Co., 59 S.C. 268, 37 S.E., 832, and numerous other cases, I must decline to substitute my judgment on the facts for that of the jury, and must let the verdict stand.
"As to the amount of damages: The jury has found that Smith, acting in the scope of his authority as agent of the defendant company, and in the furtherance of the business of the defendant company, maliciously instituted proceedings before the Insurance Commissioner to procure the revocation of plaintiff's license to as as an insurance agent in, and around Sumter; and maliciously procured a false affidavit to be used against the plaintiff in such proceedings. That the plaintiff was thereby caused to suffer anxiety and dread of losing his license and employment; and this mental worry and anxiety the medical testimony showed probably produced a physical effect in lowering his vitality and resistance to disease germs, to which he had been theretofore exposed, and was predisposed, so that they developed into an illness, causing him to go to a sanitarium the following spring, and to lose many months labor, and a decreased earning capacity, and mental pain and suffering connected with such physical injuries. There is sufficient evidence to support such findings.
"The rule as to recovery of damages growing out of a malicious tort differs in some respects from that which obtains in case of breach of contract, or a merely negligent tort. All damages directly traceable to the wrong done, and arising without a new and independent intervening agency, not under the control of the original wrongdoer, or one which he should have anticipated and guarded against, and without any fault on the part of the injured person himself are recoverable. Mack v. Southbound R. Co., 52 S.C. 323, 332, 333, 338, 29 S.E., 905, 40 L.R.A., 679, 68 Am. St. Rep., 913; Sandel v. State, 115 S.C. 168, 176, 178, 104 S.E., 567, 13 A.L.R., 1268; Coy v. Indianapolis Gas Co., 146 Ind., 655, 667, 46 N.E., 17, 36 L.R.A., 535, 538; 1 Sutherland, Damages, Sec. 36, p. 138.
"It is, therefore, ordered, that the motion for a new trial in the above-entitled action be, and hereby is, refused upon each and all of the grounds noticed."
EXCEPTIONS"1. That his Honor erred in refusing motion for a nonsuit made by the defendants Life Casualty Insurance Co. of Tennessee and W.D. Smith on the following grounds:
"That there is no evidence whatsoever of any conspiracy between any of the defendants named in the action, and particularly no evidence of any conspiracy between the Life Casualty Insurance Co. of Tennessee and W.D. Smith, the only defendants left in the case by your Honor's order.
"That if there was any communication by Smith to the Life Casualty Insurance Co. or by the Life Casualty Insurance Co. to Mr. McMahan, it was all privileged, Mr. McMahan being an officer of the State, specifically charged with the investigation of this matter, and there is not a scintilla of evidence showing that the Life Casualty Insurance Co., by any of its agents, took any steps whatsoever to injure the plaintiff Green.
"That under the general head of evidence, there is no evidence whatsoever of any damage resulting to the plaintiff Green, even if the other grounds are denied.
"The error being that said grounds for nonsuit presented a correct statement of the law as applied to the facts in this case and that said nonsuit should have been granted.
"2. That his Honor erred in refusing motion of the defendants for the direction of a verdict made on the following ground:
"`It has been conclusively shown beyond argument that the entire investigation, from beginning to end, was exclusively under the jurisdiction and by the direction of the insurance department of this State, and that, acting under the insurance department's instructions, and with their deputy, who has all the powers, in the matters involved in this case, that the Insurance Commissioner has, the affidavits were obtained by him in their presence, at their request, and if they were false and fraudulent, the State of South Carolina is a party to them.'
"The error being that said request for direction of a verdict presented a correct proposition of law as applied to the facts in this case and the same should have been granted.
"3. That his Honor erred in charging the jury the law relating to the charge of conspiracy as set forth in the complaint as said charge of conspiracy had been specifically withdrawn by the plaintiff; the error being that by said charge the jury was misled into thinking that they could still consider the charge of conspiracy as an element of plaintiff's damage.
"4. That his Honor erred in charging the jury as follows: `The charge of conspiracy, if unproven, may be considered as mere surplusage, and not necessary to be proven; if it should be proven that the defendant Smith, while acting in the scope of his authority as agent of the defendant Life Casualty Company of Tennessee, and, in furtherance of its business, maliciously procured false affidavits to be made by either Celia or Abe Butler, and knowing such affidavits to be false, maliciously used them to procure a revocation of plaintiff's license as an insurance agent by the Insurance Commissioner.'
"The error being that by said charge he submitted to the jury the question of whether the defendants had procured false affidavits to be made by either Celia or Abe Butler, whereas the testimony of the said Celia Butler and Abe Butler was to the effect that they had never made the affidavits alleged to have been made by them before L.E. Wood, Notary Public, and the testimony of the witness W.D. Smith, W.M. Crawford, E.C. Allen and L.E. Wood was to the effect that such affidavits were read over to the witnesses Celia Butler and Abe Butler before being signed by them; this charge leaving to the jury the question of whether the defendants had procured false affidavits from said witnesses Celia Butler and Abe Butler when under no construction of the testimony in the case could it be concluded that the defendants had procured false affidavits to be made by said witnesses.
"5. That his Honor erred in charging the jury as follows:
"`In other words, unless you find that the parties procuring the affidavits fraudulently and maliciously induced the signers of said affidavits to make false affidavits, then you must find a verdict for the defendants.'
"The error being that by said charge he submitted to the jury the question of whether the defendants had procured false affidavits to be made by either Celia or Abe Butler, whereas the testimony of the said Celia Butler and Abe Butler was to the effect that they had never made the affidavits alleged to have been made by them before L.E. Wood, Notary Public, and the testimony of the witnesses W.D. Smith, W.M. Crawford, E.C. Allen and L.E. Wood was to the effect that such affidavits were read over to the witnesses Celia Butler and Abe Butler before being signed by them; this charge leaving to the jury the question of whether the defendants had procured or induced false affidavits from said witnesses Celia Butler and Abe Butler when under no construction of the testimony in the case could it be concluded that the defendants had procured or induced false affidavits to be made by said witnesses.
"6. His Honor erred in charging the jury as follows:
"`I charge you that the affidavits procured by the defendant Smith in this case for use before the Insurance Commission were qualified privileged.'
"The error being that the uncontradicted testimony shows that the only affidavits procured in this case were procured at the direction and under the supervision of E.C. Allen, the Deputy of the Insurance Commissioner, and it was error to charge the jury that the defendant Smith had procured affidavits for use before the Insurance Commissioner.
"7. That his Honor erred in charging the jury that in determining the damages of the plaintiff that they could take into consideration `the effect, if any, of such malicious act upon the physical condition of plaintiff, and if such malicious conduct caused the plaintiff any physical injury you could also take into any consideration such physical injury, and any mental worry or anguish immediately connected with and growing out of such physical injury, if such physical injury was proximately caused by such malicious conduct on the part of such defendant or defendants'; the error being that the only evidence of any physical injury to the plaintiff was that he suffered an attack of tuberculosis about six months after the investigation of the charges by the Insurance Commissioner; that said plaintiff had tuberculosis in his family and there was no testimony to connect the illness with the acts of the defendants from which plaintiff alleged injury. That said illness was too remote and his Honor erred in submitting to the jury the question whether such illness was caused by the acts of the defendant.
"8. That his Honor erred in refusing the motion of the defendants for a new trial, made on the following ground:
"`His Honor erred in submitting to the jury the issue of whether Smith or some other officer of the Company induced Abe and Celia Butler to make false affidavits, as their testimony was to the effect that they had never made the statements attributed to them in the affidavits, which negatives any idea that they had been induced to make such false statements; and further, the testimony of Smith, Crawford, Allen and Wood establish by the overwhelming weight of the testimony that the affidavits were read to Abe and Celia Butler, and that they knew the contents thereof before they were signed.'
"The error being that in his order refusing new trial his Honor made the following statements:
"`I have known Mr. Wood, the Notary who took the affidavit, to be a gentleman of high character, and have been with him on circuit while he was stenographer of the third circuit, and I know he would not consciously be a party to mislead an affiant in making an affidavit, and I believe that he read over the affidavit to Celia, and added a line thereto in accordance with what she told him before he signed it or let her sign it before him. * * * While I would have attached less weight to the testimony of Celia and Abe than the jury has done, and so have found a different verdict, the case was one for submission to the jury, and their finding is not against the manifest weight of the evidence,' thus showing that he believed that the affidavit of Abe Butler and Celia Butler were read over to them before they were signed; he had charged the jury that if they believed that such affidavits were read over to the witnesses Abe Butler and Celia Butler before they were signed that they must find for the defendants and from his statements it is manifest that his Honor believed that they were read over to said witnesses before signing that, therefore, the jury had gone in the face of what he considered the manifest weight of the testimony; and it was his duty as a presiding Judge to set aside their finding."
Messrs. Benet, Shand McGowan, for appellants, cite: As to privileged statements: 2 Brev., 76; 122 S.C. 350; 19 Ann. Cas., 1196. Recovery for physical suffering where matter alleged not libellous per se improper: Ann. Cas., 1914-C, 288, 291; 73 N.J.L., 45; 125 Fed., 203; 53 S.W., 520; 2 Hill (N.Y.), 309; 12 Barb., 675; 5 H. N. (Eng.), 5334; 17 N.Y., 54. Sickness resulting from mental suffering or anguish will not afford an element of damages where no actual injury to person or property: 17 C.J., 832; 233 Fed., 301; 131 N.W., 18; 98 N.E., 1048.
Messrs. L.D. Jennings, and M.W. Seabrook, for respondent, cite: Proof of conspiracy not necessary to plaintiff's case here: 124 S.C. 20; 87 S.C. 42; 12 C.J., 585. To charge on conspiracy no error here: 133 S.C. 353. As to privileged communications: 25 Cyc., 547; 119 S.C. 241; 88 S.C. 378; Art. 1, Sec. 4, Const., 1895; 181 S.W. 930; L.R.A., 1916-D, 391; 69 Pa., 103, 109; 3 How., 266; 2 A.S.R., 870; 8 N.W., 71; 33 Atl., 920; 12 C.J., 955; 128 S.W. 878; 30 L.R.A. (N.S.), 200; 98 S.E., 65; 3 Hill, 85; 36 C.J., 1264. A qualified privilege is lost if malice is present: 49 So., 888; 59 So., 647; 45 So., 809; 73 S.E., 382; 158 Ill. App., 20; 189 Ill. App., 1; 92 Atl., 284; 94 Atl., 1103; 154 N.Y.S., 486; 113 S.W. 574; 173 S.W., 67. Distinguished: 2 Brev., 76. The privilege that surrounds alleged libellous statements uttered and published in judicial or legislative proceedings does not extend or apply to public officers in general: 129 N.W., 147. Questions of fact not considered on appeal: 40 S.C. 114; 51 S.C. 560; 58 S.C. 83; 118 S.C. 195; 50 S.C. 214; 93 S.C. 272. Where different inferences may be drawn from same testimony, inference to be drawn is for jury: 54 S.C. 498; 91 S.C. 439; 68 S.C. 13; 91 S.C. 439; 59 S.C. 268; "Malice": 193 S.W. 463; 38 C.J., 349, 353; 116 Atl., 769; 15 S.C. 409. As to damages: 15 S.C. 177; 52 S.C. 323, 332; 115 S.C. 168; 36 L.R.A., 535; 1 Sutherland on Damages, Sec. 36; 189 Fed., 980; 195 Fed., 740; 67 So., 391; 121 S.W. 268; 136 S.W. 651; 173 S.W., 728; 127 N.W., 481; 76 Atl., 609; 78 Atl., 609; 144 N.W., 149; 105 S.W. 709; 101 Pac., 322; 21 Ann. Cas., 502; 86 Atl., 824; 133 Pac., 351; 97 S.W. 1039; 106 S.W. 463; 129 Pac., 1090; 32 App. D.C., 442; 116 Pac., 110; 163 Ill. App., 282; 179 Ill. App., 307; 98 N.E., 1048; 17 C.J., 836; 112 S.W. 995; 17 C.J., 836; 52 S.C. 334; 99 S.C. 298; 17 C.J., 832.
February 20, 1929. The opinion of the Court was delivered by
I think the judgment in this case should be affirmed, and will state briefly my reasons therefor.
This is an action in tort for alleged injury to the plaintiff's business, reputation, and health.
For about seven years prior to July 1, 1921, the plaintiff was employed by the defendant Life Casualty Insurance Company of Tennessee as agent to sell industrial life insurance, with headquarters at Sumter, and the employment seems to have been mutually satisfactory. In July, 1921, he resigned from this position and attempted, without success, to secure employment with the defendant Durham Life Insurance Company. He then procured a place as agent with the Libery Life Insurance Company of Greenville, and was assigned to work at Sumter, in practically the same territory which he had covered as agent for the Tennessee company. Several weeks later, a report having been made to the Tennessee company by the defendant W.D. Smith, its district superintendent at Sumter, that Green was making derogatory statements about the company and its business, the assistant secretary of the company entered complaint with the State Insurance Commissioner, who thereupon sent one of his deputies, E.C. Allen, to Sumter to make an investigation. Accompanied by Smith, the deputy visited and interviewed certain persons, whom Smith had previously seen, and procured affidavits, some of which had been previously prepared and were furnished him by Smith, stating that the plaintiff had said that the company was charging too much for its policies, was cheating poor, ignorant negroes, and was robbing its policyholders, and that he could not sleep at night on account of these matters. Allen forwarded these affidavits to the Commissioner, and told the plaintiff that his license as insurance agent would probably be revoked.
The plaintiff alleges that he was unable to obtain work from the Durham Company, because that company had agreed with the Tennessee Company not to employ him; that the statements contained in the affidavits were false, and were obtained for the express purpose of injuring him in his reputation and business and depriving him of his license; that these acts were done by the defendants willfully and maliciously; and that he was injured in his reputation, business, and health, and caused to spend time and money in defending himself before the State Insurance Commissioner in order to prevent his license from being revoked.
The case was tried in December, 1925, before Judge Townsend and a jury. At the trial Judge Townsend ordered a nonsuit as to the Durham Company, and, as there is no appeal from this order, that company passes out of the case.
The answer of the defendants Smith and the Tennessee Company alleges that, after the plaintiff had left the employment of the Tennessee Company and secured employment with the Liberty Company, they were advised by policyholders of the Tennessee Company that the plaintiff had made efforts to alienate policyholders of that company, and in so doing had made statements derogatory to the company and its policies and way of doing business; that they sought to get information with reference to these alleged statements of the plaintiff, and that, acting upon such information, they requested the State Insurance Department to make an official investigation of the matter, and in so doing acted in entire good faith and without malice towards the plaintiff, but in an effort to protect their own rights and good name; that the information, when gathered in the form of affidavits, was inspected and checked by an official of the State Insurance Department and turned over to that department for its own use and for no other purpose.
The defendants made a motion for a nonsuit and also for a directed verdict; the Court refused these motions and submitted the case to the jury who found for the plaintiff in the sum of $5,000. The Court also overruled a motion for a new trial. The defendants now appeal to this Court.
The questions raised by the first — except as to conspiracy — second, seventh, and eighth exceptions are satisfactorily disposed of by Judge Townsend's order refusing a new trial. This order will be reported.
Exception 3 and that part of Exception 1 relating to conspiracy cannot be sustained. While the complaint alleges facts which, if supported by testimony, would have constituted conspiracy, the trial Judge specifically told the jury that the plaintiff admitted that no conspiracy had been proved; and these remarks as to conspiracy were made for the purpose of explaining to the jury that, although the plaintiff had failed to show conspiracy, he might still recover against either or both of the defendants, if the evidence showed that such defendant or defendants had done him a malicious wrong without any concerted action — which is, of course, a correct proposition of law. Goble v. Express Co., 124 S.C. 20, 115 S.E., 900. When the charge is taken as a whole, we find no prejudicial error.
Exceptions 4 and 5 impute error to the trial Judge in submitting to the jury the question whether the defendants had procured false affidavits to be made by either Celia Butler or Abe Butler. These affidavits are the crux of the case as developed at the trial. Celia's affidavit was to the effect that Green told her that the Tennessee Company was beating her out of $3 every week, and robbing the public; that while he was working for that company he tried to get the company not to charge people so much for insurance, but they did not listen to him, so he left them and went to an honest company. Abe's affidavit was to the effect that he had heard the affidavit of Celia, his wife, and that it was correct, he having heard the conversation between Green and his wife. The defendant's testimony is that Smith and Crawford, another agent of the Tennessee Company, went to Celia's home and talked with her on August 22, 1921; that Crawford then and there, in Smith's presence, wrote out a statement which Celia then signed; that on August 25, 1921, Allen, with Smith and a notary public, went to see her, the signed statement was read to her, a sentence was added by the notary public, she swore to the statement with the addition, and the notary public added the necessary formalities to convert the writing into an affidavit. She admitted that she signed the paper, but denied that it was read over to her, and that she made the statements contained therein. Abe denied that he signed his alleged affidavit. I think the testimony clearly made the issue submitted to the jury in the charges complained of.
Exception 6 is without merit. Under the testimony already referred to, taken with other testimony in The case, including that of the defendant Smith, who admitted that he himself actually wrote out one of the affidavits placed in evidence, and that of the witness Taylor as tending to show Smith's attitude in connection with the procuring of affidavits, there was no error in the charge as objected to.
"On the whole," as said in Leitner v. Railway Co., 145 S.C. 489, 143 S.E., 273, "the case was tried in accord with the principles of law applicable. The issues made by the controversy were mainly issues of fact, which were properly submitted to the jury as determinable by them alone under the evidence; and to set aside the verdict and direct judgment for the defendants would be, in my opinion, a usurpation by this Court of the jury's prerogatives."
This opinion, written as a dissent from the opinion of Mr. Justice Cothran, being concurred in by Justices Blease and Carter, becomes the judgment of this Court, which is that the judgment of the Circuit Court be affirmed.
In concurring in the opinion of Mr. Justice Stabler, affirming the judgment of the Circuit Court, I desire to state that I am in full accord with the well-deserved remarks make by the Circuit Judge with reference to the high character of witnesses for the defendants, especially with reference to Mr. Wood, who is a worthy member of the South Carolina bar, and for whom I entertain the greatest respect and hold in very high esteem; but the case involved is a law case, and this Court cannot reverse the judgment of the lower Court because, perchance, it attaches greater or less weight to the testimony of witnesses than given by the jury. According to my view of the case, there was conflicting testimony on the issues involved, as pointed out in the leading opinion, written by Mr. Justice Stabler, and it was, therefore, proper for his Honor, the presiding Judge, to submit the case to the jury.
MR. JUSTICE BLEASE concurs.
This is an action for $100,000 damages instituted by the plaintiff against the Life Casualty Company of Tennessee, its superintendent W.D. Smith, and the Durham Life Insurance Company, resulting from an alleged conspiracy on the part of the defendants named, maliciously to injure the plaintiff in his profession and business as an insurance solicitor.
The case was tried before his Honor, Judge Townsend, and a jury. After hearing the evidence, his Honor directed a verdict in favor of the Durham Company upon the ground that the plaintiff had offered no evidence tending to establish the charge of conspiracy against that company. He also held that what the defendant Smith, superintendent of the Tennessee Company, had done, even within the actual scope of his agency, could not constitute a conspiracy on the part of him and the company he represented.
The charge of conspiracy was thus practically eliminated from the case, and the issue submitted to the jury was presented by the presiding Judge in the following very clear statement: "The plaintiff is asking for damages against the defendants on the ground that the defendant Smith was the agent of the defendant Life Casualty Insurance Company of Tennessee, and as such agent, and acting in the scope of his authority and agency, and for the purpose of injuring plaintiff in his business as an insurance agent, and to have revoked his license to act as an insurance agent in the same section of the State in which both plaintiff and said defendants were competitors, seeking to insure certain of the public, in order that defendants might put and keep plaintiff out of the insurance business, and take over his business for themselves, and in furtherance of the business of the Life Casualty Insurance Company, began circulating among certain policyholders, whose policies had been theretofore written by plaintiff in the Life Casualty Company, and maliciously induced some of such policyholders to sign affidavits, which the defendants knew were false, to the effect that plaintiff was making false statements to such policyholders, charging the Life Casualty Insurance Company with robbing its policyholders, and stating that its rates were too high, and that its employees were dishonest, and that the plaintiff could not sleep at night for thinking about the policies he had sold for said Life Casualty Insurance Company; and that all the statements in said affidavits concerning plaintiff were false, that defendants knew they were false, and maliciously obtained and used said false affidavits for the purpose aforesaid, and for the purpose of injuring the plaintiff in his business; and plaintiff further claims that defendants, by the malicious use of said false affidavits, has injured plaintiff by preventing him from obtaining employment as an insurance agent, and has caused him loss of time and labor in defending himself against such charges before the Insurance Commissioner; and has caused him physical injury and mental worry and anxiety connected therewith and growing out therefrom."
He more concretely, and very properly, charged the jury as follows: "Any malicious interference with the business or occupation of another, if it is the proximate cause of damage, is an actionable wrong. Such interference may be by a single individual or corporation, or by a number of individuals or corporations conspiring together, but it is the injury or damage maliciously caused, which constitutes the gist of the action; and not the conspiracy, the latter being a matter of aggravation, if proven, as affecting the means and manner of redress. The claim of the plaintiff is based on a willful or wanton or malicious tort, and the plaintiff should not recover any damages unless has has proven by the greater weight of the evidence that he has been injured as alleged in the complaint by one or the other of said two defendants willfully or wantonly or maliciously procuring from Celia Butler or Abe Butler one or both of the affidavits purporting to be signed by each of them, which have been introduced in evidence and that he or it knew at the time he or it took such affidavit that the statement contained therein was false, and that the person signing such affidavit as affiant did not know the contents thereof and was not swearing to the statements therein contained as the truth; and by defendants maliciously using such false affidavit in a proceeding before the Insurance Commissioner for the purpose of procuring the revocation of plaintiff's license as an insurance agent."
The evidence tended to establish the following facts:
Prior to July 16, 1921, the plaintiff Green had been employed by the Tennessee Company, as its local agent in the City of Sumter, for seven years, and had given entire satisfaction to the company, as was shown by the very commendatory letters in evidence which he received from the company theretofore.
On that day he tendered his resignation for personal reasons, no breach of the friendly relations having occurred between him and the company.
The company's activities appear to have been limited to the colored population of Sumter, in the issuing of life, health, and accident policies. The premiums were collectible weekly, and the list of policyholders was put in the hands of the agent to make collections; it has been referred to as the "debit line."
On July 26, 1921, 10 days after his resignation, the plaintiff secured employment with the Liberty Life Insurance Company of Greenville, S.C. a company engaged in the same line of insurance, in the same territory, City of Sumter; and his debit line was turned over to one Crawford, who took the plaintiff's place with the Tennessee Company.
The defendant, W.D. Smith, testified:
"Q. All right, after he went to work for the Liberty Life Insurance Co., on July 25th, and Mr. Crawford was put on his debit, state whether or not any reports came in to you about his debit? A. No, sir; the first week everything was all right.
"Q. What about the next week? A. Everything all right next week.
"Q. What about the next week? A. Everybody quit; I don't mean all, but the majority of them wouldn't pay the insurance.
"Q. Did you take steps to find out why? A. Yes, sir."
The defendant Smith then wrote to Dunkerley, secretary of the Tennessee Company, on August 24, 1921, as follows: "It is now Wednesday P.M. and we have not seen or heard anything from the Insurance Commissioner, and our company is still being knocked and abused by Mr. Green, an ex-agent of this company, and it is hurting us bad, our competitor agents are advising us that we had better act quick if we want to save any of our business, and also some of the older policyholders who Mr. Green could not influence have come to me and told me it is awful the way Mr. Green is doing and we ought to stop him if we can. I have done all I can, and Mr. Crawford is doing all he can, but this man Green had a terrible holt on the policyholders, at least fifty per cent. of this debit is dead and I don't believe there is a man living who can save it. If you have a road man with supernatural power you had better get him to Sumter. The reason I don't believe there is a man living who can save it, is because he is taking advantage of the Endowment policies and telling the folk we are charging them too much for insurance, and while he was with this company he tried to get them to give the people a fair rate and they wouldn't do it so he quit and went to an honest company that would give them a fair rate, he hands out this dope in a smooth way and it knocks our business to pieces and we can't even get in the homes."
Upon receipt of that letter Dunkerley transmitted it to McMahan, Insurance Commissioner, stating: "And you will note by its contents that it is very essential that we get Mr. Allen into this district at the earliest possible moment." (Allen was one of the Commissioner's men.)
Dunkerley had previous to this time written to Mr. McMahan, as Commissioner, that it had been reported to him that Green was disturbing the policyholders of the Life Casualty Insurance Company around Sumter, and asked an investigation through his office. This investigation was ordered by the Commissioner, and on August 22d he advised Mr. Dunkerley that he was sending E.C. Allen, the supervisor of industrial companies, to investigate the actions of Green at Sumter.
On August 25th, Mr. Allen, the investigator, reported at Sumter, and was taken around by Mr. Smith, the superintendent, and W.M. Crawford, who was in charge of Green's old debit. Smith and Crawford had some statements from certain policyholders, Celia Butler and Winnie Williams, which they turned over to Allen, and also told him of other policyholders who were complaining. Allen went to see those who had made statements as well as others, and then, at the suggestion of Allen, a notary public was procured so that any statements made could be put into the form of affidavits. The notary who was employed was Mr. L.E. Wood, then a practicing attorney in Sumter, in partnership with Senator John H. Clifton and now an attorney at Greer, S. C. In company with Wood, Smith, and Crawford, Allen went to the homes of four witnesses whose affidavits form the basis for the charge in the case — Celia Butler, Abe Butler, Fanny Anderson, and Winnie Williams — and also later at the office of the company was present when the affidavit of Henry Brown was executed. According to the testimony, Allen or Wood, the notary, read over each of these affidavits to the several affiants, and Wood administered the oath as notary public.
The statement of Celia Butler had been written out and signed by her on August 22d, but it was reaffirmed by her in the presence of Allen and Wood, after being read to her by each of them, and in the presence of Wood she added the last line, "I told Mr. Green I had had dealings with the Life Casualty Company and they had treated me white and straight," which was inserted by Wood in his own handwriting at the time the affidavit was sworn to by Celia Butler. The affidavit of Abe Butler was written out by L.E. Wood at the time it was sworn to, as was the affidavit of Fanny Anderson. The statement of Winnie Williams had been written out by W.M. Crawford, but it was read over and affirmed by Winnie Williams and sworn to in the presence of Mr. Wood on August 25, 1921. The affidavit of Henry Brown was written by a man named Rowland employed by the Life Casualty Insurance Company, but in the presence of E.C. Allen, and sworn to by Brown before L.E. Wood all on the 25th of August.
None of these statements were reduced to affidavit form except at the suggestion and under the direct supervision of E.C. Allen, the inspector sent there for that purpose.
Allen then wrote a report, dated August 26, 1921, addressed to Mr. McMahan, the Insurance Commissioner, in which he transmitted the affidavits and stated that from his investigation he did not see anything for the Insurance Department to do but to revoke Green's license.
The Insurance Commissioner, on receipt of this report, wrote to Green advising him of its tenor. No hearing was had thereon, however, and no further action whatever taken by the Commissioner to cancel the license.
At the trial of the case the witnesses, Celia Butler and Abe Butler, were the only parties who had made affidavits who testified in person as to what had been put in such affidavits.
Celia Butler stated that she had told Mr. Smith prior to the visit of Mr. Allen that she would sign a paper for him, and that he brought a paper to her which she signed.
She admitted her signature to the affidavit, but denied that she had made the statements therein, and denied that the same was ever read to her. This is in direct contradiction of the testimony of E.C. Allen, the investigator, who testified it was read to her by him when he and Smith went there the morning of August 25th, and was later read to her in his presence by L.E. Wood, the notary public; and of L.E. Wood, who testified that not only did he read it to her, but that she added the last line which was inserted in his handwriting. Also this contradicts the statements of Smith and of Crawford.
The witness, Abe Butler, denied having signed the affidavit attributed to him and to be found at folio 976, stating that the only one he ever signed was at the Bradham house for Mr. Levey, the attorney for Green. This is in direct contradiction of the statement of L.E. Wood and of the other parties present.
It is significant that Green testified that he had something like 1,000 or 1,200 policyholders on the debit line of the Tennessee Company, and that he had visited "some few" in the interest of the Liberty Company; he could not remember whether he had sold 333 of them policies or not; nor could he remember whether he had visited half of them or not.
Affidavits were submitted to the Insurance Commissioner from Celia Butler, Abe Butler, Henry Brown, Fannie Anderson, Winnie Williams, to the effect that Green was indulging in unfair practices, "knocking" the Tennessee Company, and using his former association with the Tennessee Company to induce policyholders on his debit to change companies.
It is conceded that Green was violating a rule of the Insurance Department: "A collector employed by one industrial company from service for another shall not be put to work in the same territory where he had been working for the other industrial. At least six months' time should intervene before he is eligible to be put in the same territory for a new company."
Assuming that Smith procured the affidavits, and not Allen, the representative of the State Insurance Department, and that his Honor, the presiding Judge, properly charged the jury: "I charge you that the affidavits procured by the defendant Smith in this case for use before the Insurance Commissioner were qualifiedly privileged; and there can be no recovery on account of procuring and publishing said affidavits unless it was done maliciously; and I charge you that it is necessary for the plaintiff to prove by the greater weight of the evidence that said affidavits were actuated or procured by actual malice, and failing so to prove, your verdict must be for the defendants. Actual malice is defined to be: that condition of mind which prompts one to do a wrongful act intentionally without legal justification or excuse." We are of opinion that there is not a particle of evidence which tends to show that the action of the defendants was inspired by malice against the plaintiff; or that the representative of the company had the slightest suspicion of the alleged falsity of the affidavits.
The Circuit Judge, in his order refusing a new trial, has paid a deserved tribute to L.E. Wood, Esq., an attorney of the Greenville bar and a member of the House of Representatives from Greenville County.
The undisputed facts are: (1) The plaintiff admits that he used the debit which had been furnished to him by the Tennessee Company in soliciting insurance for the Liberty Company, and compared the cost of one with the other; he denies that he induced any one to drop their insurance with the Tennessee Company. (2) That after two weeks the debit list turned over to plaintiff's successor had unreasonably been reduced by withdrawals. (3) That the superintendent had been informed of Green's improper activity and reported it, as he should have done, to the home office. (4) That the home office very properly referred the matter to the Insurance Commissioner and requested him to investigate the complaint and report. (5) That the Commissioner sent Allen from his office to do so. (6) That Allen, in cooperation with the agents of the company, secured numerous affidavits of Green's pernicious activity, and recommended his suspension as an insurance agent. (7) The evidence tends to show no malice on the part of Smith or the company, but attention to the interests of the company, in a legal channel, based upon information supported by affidavits which he had right to assume were true in the absence of a suspicion to the contrary.
We think that the motion of the defendants for a directed verdict in their favor should have been granted.
The judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for the entry of judgment in their favor under Rule 27.
MR. CHIEF JUSTICE WATTS concurs.