Alley v. . Long , 209 N.C. 245 ( 1936 )

Civil action for slander.

The record discloses that on 20 August, 1934, S. M. Long, general manager of the corporate defendant's storage warehouse in Greensboro and "in charge of the Tea Company's business with regard to losses," called the plaintiff into his office and said to him, in the presence of J. E. Collins, that on Friday night of the week before, eight boxes of bananas went out of the warehouse, and they could not have gone out of the back door, as it was locked; they were bound to have gone out on the trucks, and "it shows you are letting them get out, letting the drivers take them and selling them and you splitting with them." And further: "If they don't stop, I will have to ask Mr. Crowder to get a new man to check the trucks in your place. . . . All the drivers you have over there are crooked," etc.

Plaintiff was night shipping clerk for the Crowder Transport Company, an independent contractor, engaged by the Tea Company to do its hauling from the storage warehouse to its several retail stores. Plaintiff's duties were to check the trucks and see that the produce got out.

J. E. Collins, one of the drivers for the Crowder Transport Company, came to the door of Mr. Long's office, while he was talking to the plaintiff. The door was open. Collins testified: "I could hear what was said. I stopped at the door. Mr. Alley could see me, but Mr. Long could not. He was sitting with his back to me. I didn't interrupt them. I just stood at the door and listened until they finished talking, then I walked in and gave him (Long) my tickets."

At the close of plaintiff's evidence the corporate defendant moved for judgment of nonsuit, which was allowed; whereupon the plaintiff suffered a voluntary nonsuit as to the individual defendant, and appealed. The theory of the nonsuit as to the Tea Company is, that there was no conscious publication of the alleged slanderous remarks on the part of its general manager and codefendant, Mr. Long. This, we think, was a question for the jury under the facts in evidence. Hedgepeth v. Coleman,183 N.C. 309, 111 S.E. 517, 24 A.L.R., 232; McNichol v. Grandy, 81 A.L.R., 103.

According to the plaintiff's testimony, "Mr. J. E. Collins was present, while the conversation was going on"; and Mr. Collins testified that he could hear what was said. True, it is in evidence that Collins was standing at the door and that Long was sitting with his back to the door and could not see him. Non constat that he was not conscious of his presence. McKeelv. Latham, 202 N.C. 318, 162 S.E. 747.

But the case does not stop here. Even if Collins did overhear the conversation to the knowledge of Long, still the Tea Company contends there was no publication, such as the law requires in defamation, because Collins was one of the drivers of the Transport Company and included in the charge, "all the drivers you have over there are crooks." Bull v. Collins, 54 S.W.2d (Tex.), 870; Harbison v. C. R. I. P. Ry. Co., 327 Mo., 440,37 S.W.2d 609, 79 A.L.R., 1.

The language of the declarant, it will be noted, does not charge Collins directly with participation in the looting of the Tea Company's merchandise — only that the drivers were crooked — while full responsibility is placed upon the plaintiff. It would seem that the principle contended for is not available as a shield in the circumstances presently presented. Marble v. Chapin, 132 Mass. 225.

The Tea Company also contends that Long was not acting within the scope of his employment in taking the matter up with the plaintiff. Sawyer v. R.R., 142 N.C. 1, 54 S.E. 793. This was a question for the jury under the evidence. Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446. Long was "in charge of the Tea Company's business with regard to losses," and he threatened to ask for plaintiff's removal.

It is observed there is no plea of privilege, justification, or mitigating circumstances. C. S., 542; Hartsfield v. Hines, 200 N.C. 356,157 S.E. 16; Gudger v. Penland, 108 N.C. 593, 13 S.E. 168; McIntosh Practice and Procedure, 365; 17 Rawle C. L., 401.

Reversed.