April 11, 1922. The opinion of the Court was delivered by In an action for slander, the plaintiff recovered judgment for actual damages. The defendants appeal and assign error (1) in the refusal of the trial judge to grant motions for non-suit and for a directed verdict, and (2) in refusal to give the request to charge, which will be hereafter noted.
The evidence for plaintiff tended to establish the following facts: The plaintiff, W.H. Switzer, a young man about 21 years of age, had formerly been in the employ of the defendant, American Railway Express Company, in the several capacities of delivery clerk, messenger, and local agent. In July, 1920, he was made local agent at Estill, a town of about 2,000 inhabitants. In the latter part of September, 1921, the plaintiff, Switzer, was "checked out" of the Estill office, at which time he owed the Express Company over $1,000.00, on account of charges which he had failed to collect upon the Company's business. He made up the deficit by securing the money from his people at Saluda. Plaintiff had been accompanied to Saluda for that purpose by the defendant, *Page 240 L.S. Tevis, and testifies, in this connection, that he had been told that if he did not get the money they would put him in jail. On Friday night, October 8, 1920, the express office at Estill was robbed. The following day the defendant, L.S. Tevis, a special agent, and R.N. McLeod, a route agent of the defendant Express Company, were in Estill for the purpose of investigating the robbery. The plaintiff was then staying at the hotel in Estill, his business being to collect money due him by parties to whom he had extended credit as express agent. J.A. Wilkinson, who had been installed as local agent at Estill to succeed Switzer, was in charge of the local office at the time of the robbery. After talking the robbery over with Local Agent Wilkinson, Messrs. Tevis and McLeod, accompanied by Wilkinson, interviewed the chief of police, who gave them information tending to indicate that the plaintiff could not have been concerned in the robbery. The following morning (Sunday), Messrs. Tevis and McLeod requested the plaintiff to accompany them. Mr. Tevis asked Mr. Wilkinson, the local agent to retire from the room. It was in the course of this interview that the alleged slanderous words were used by the defendant, Tevis, in the presence of Route Agent McLeod and also in the presence or in the hearing of Local Agent Wilkinson. The statement was:
"Well, it does look suspicious of you, being in Estill at the time of the robbery took place, knowing the details of the office as run on the inside and outside, too," etc.
The defendants contend that the trial Judge erred in refusing the motions for non-suit, and for the direction of a verdict in favor of the defendants, upon the ground that there was no publication of the alleged slander. The contention rests upon the doctrine of qualified privilege. It is urged that at the time the alleged slander was uttered, the defendant, Tevis, and Route Agent McLeod, assisted by Local Agent Wilkinson, were engaged in the business of trying *Page 241 to ferret out a crime and to discover the person who robbed the express company's office at Estill, and that the alleged slander, if uttered, clearly falls within the principle thus stated by Mr. Newell in his work on Slander (3rd. Ed.) § 3597:
"Upon grounds of public policy, communications which would otherwise be slanderous are protected as privileged, if they are made in good faith in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing to punishment the criminal."
Since there was no evidence establishing or tending to establish that the alleged slanderous remarks were communicated to any other persons than Route Agent McLeod and Local Agent Wilkinson, defendants contend that the trial Judge should have held that the evidence was susceptible of no other reasonable inference than that the communication was made upon a privileged occasion, to persons privileged to hear.
We do not think that position can be sustained. While unquestionably the protection of privilege extends generally to remarks made in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing to punishment the criminal, whether the remarks in the case at bar were so made as to bring them within the protection of that privilege depended upon the establishment of certain essential facts.
"Whether the facts which give the publication the privileged character claimed for it are established by the evidence is a question for the jury." 25 Cyc., 547.
The fallacy of defendants' argument lies in the assumption that it was competent for the trial Court to determine that the facts upon which the privilege was predicated had been proved. The guiding principles are thus clearly *Page 242 stated by Judge Earle, of the old Court of Appeals, in the case of Smith v. Youmans, 3 Hill, 85, as follows:
"From the speaking of slanderous words, that are actionable in themselves, the law implies that they are false, and that they are malicious. It is for the defendant to prove them true; or to rebut the presumption of malice, by showing that they were spoken on such an occasion, or under such circumstances; as to excuse the speaking, and to render them innocent.* * *
* * * In general, however, where it appears, on the plaintiff's showing, or on evidence produced by the defendant, that the publication was made on such an occasion, or under such circumstances as have been specified, and that the words were spoken bona fide in the discharge of some legal or moral duty, rendered necessary by the exigencies of society, the occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fail without further proof. See Stark. Evid. 4, p. 863, and the case there cited. Malice is, however, the essential ingredient which entitles the plaintiff to recover. * * * The circumstances themselves, the manner of speaking, the temper manifested, without extrinsic evidence, may be enough to indicate malice, and to deprive the defendant of the benefit he might have derived from the occasion of the speaking. But this is always a question for the jury, whether the words spoken, if actionable in themselves, were spoken maliciously, and without a defamatory intention."
The trend of modern judicial opinion is in accord with the principles thus enunciated. 17 R.C.L. p. 418, § 178. and cases cited. The Courts of other jurisdictions differ as to the extent of the trial Court's power and duty to determine whether such prima facie showing of privilege has been made in a given case as will require the proof of express malice, but, under the settled law of *Page 243 this State, there is no room for doubt as to the respective provinces of Court and jury. While, as stated by Judge Earle in the case of Smith v. Youmans, supra, the privileged "occasion affords a prima facie presumption to rebut the inference of malice, and the plaintiff would fall without further proof," the presumption thus raised is a presumption or inference of fact sanctioned by law, to be applied by the jury under appropriate instructions of the Court. It is true, of course, that a non-suit may be granted or a verdict directed when the evidence establishes a defense to the action.
"But, in that case, the evidence in support of the defense must be open to no other reasonable inference than the truth of the essential elements of fact constituting the defense."Vermillion v. Woman's College of Due West, 104 S.C. 200;88 S.E., 650.
As to the essential elements of fact entering into the defense of privilege, interposed by the defendants here, Mr. Justice Brown, in the case of Alexander v. Vann,180 N.C. 189; 104 S.E., 361, uses this language:
"Mr. Newell says (Section 497), that a communication, to be privileged, must be made upon a proper occasion, from a proper motive, and must be based upon reasonable or proper cause."
In the case of Sheftall v. Central of Ga. Ry. Co.,123 Ga. 593, 51 S.E., 648, it is said:
"To make the defense of privilege complete * * * good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and to proper parties only, must appear. The absence of any one or more of these constituent elements will, as a general rule, prevent the party from relying upon the privilege. All of these questions are, however, questions of fact for the jury to determine according *Page 244 to circumstances of each case under appropriate instructions from the Court."
The plaintiff testified that he knew that Tevis, McLeod, and Wilkinson were in the employ of the express company and that Messrs. Tevis and McLeod had some authority and duty with respect to the investigation of "robberies." If that testimony could be construed as committing the plaintiff to an admission of the authority and duty of Tevis and McLeod to investigate the "robbery" of the express office, it still remains for the defendants to establish the other facts essential to the creation of the privilege claimed. Whether the malice implied from the speaking of the alleged slanderous words was rebutted by evidence tending to establish that the words were spoken upon a proper occasion, in good faith, for reasonable cause, by one engaged in the discharge of a legal or moral duty, was clearly an issue of fact for the jury.
The jury's verdict for actual damages — negativing as argued, a finding of express malice — was also entirely consistent with a finding that the presumption of malice had not been rebutted. If, as a matter of fact, the defendant, Tevis, was not privileged to make the alleged slanderous statement, the publication to either McLeod or Wilkinson would be sufficient to render a slander actionable. In that view of the case, it is immaterial whether Wilkinson had such interest or duty with respect to the communication as would otherwise have entitled him to hear it. But there is the further consideration in this connection that testimony was adduced by defendant themselves tending to refute the contention of fact that Wilkinson was so engaged in a joint and common task, in behalf of the common employer, the express company, as to preclude him from occupying the relation of a third party. The fact that Wilkinson had been requested by Mr. Tevis to leave the room on the occasion of the alleged *Page 245 slanderous remarks would tend to controvert defendants' contention that he was engaged with Tevis and Mcleod as a fellow employee, with a like interest and duty in the privileged business of investigating the crime. Upon the whole evidence, there was no error in refusing the motions for non-suit and for a direction of a verdict.
The remaining ground of appeal imputes error in the failure of the trial Judge to charge the following request:
"Where two or more persons are employed in a certain undertaking by one common master, which is a corporation, and the duties of those persons in the conduct of the ordinary business of the company (on which they are engaged) requires them to act together for the common master, then a statement made by one of them in the presence of another or others of them would not constitute a publication of a slander."
We do not think the proposition embodied in this request is sound. A defamatory statement made under the conditions indicated would constitute the publication of a slander unless uttered in good faith, in the course of an undertaking for the common master, which entailed the discharge of a legal, social, or moral duty. Smith v. Youmans,supra. The request could not properly have been given without qualification. But aside from that the principle of law covered by the rejected request was fully and clearly charged by the Circuit Judge in giving the defendants' second and third requests.
For the reasons indicated, the exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.