The dissenting opinion heretofore filed by me in this case is withdrawn; the following is submitted in substitution of it and will be considered both as a dissent from the opinion of Mr. Justice Carter upon the merits of the appeal and as a dissent from the proposed order dismissing the petition for a rehearing:
The plaintiff, prior to May 4, 1929, was employed by the defendant as manager of its restaurant at Florence. On that day his employment was terminated by the defendant which wished to transfer him to Richmond. To the transfer he objected. At the time of his employment, the plaintiff was required to and did deposit with the defendant $500.00 in cash, in the nature of a bond, as security for the faithful *Page 101 performance of his duties as manager. The complaint alleges that the agreement between the plaintiff and the defendant in reference to the deposit, was that, in the event of the termination of the employment, the plaintiff should account "for all of the money and property of the defendant which had come into his possession" and that, upon doing so, the deposit should be returned to him.
It will be observed in passing that, according to the plaintiff's own allegations, contained in his complaint, the deposit was intended to secure, not only the faithful performance of his duties as manager but a true and faithful accounting by the plaintiff of his stewardship, and that only then was he entitled to a return of the cash deposit.
He alleges that immediately upon the termination of his employment, he accounted for all of such money and property to the satisfaction of the defendant, and "that no deficit or liability existed from the plaintiff to the defendant at the time of plaintiff's leaving"; he made demand upon the defendant for the return of his deposit, but that the defendant "fraudulently and willfully, with the intent to deprive plaintiff of his money, and in utter disregard of his rights refused to deliver same to the plaintiff." In support of his allegation of fraudulent and willful withholding of the money, the plaintiff alleged: "That the defendant after plaintiff had accounted for all money and property placed in his possession in order to retain possession of the said sum of Five Hundred and No/100 ($500.00) Dollars, in violation of plaintiff's rights, fraudulently and maliciously fabricated a charge and accusation against the plaintiff, that the plaintiff had while in the employ of the defendant as manager of its restaurant at Florence, S.C. fed on one occasion, approximately one hundred Marines, and that he had failed to account for the receipts of feeding these one hundred men and had feloniously appropriated and stolen the money received from these men, all of which the defendant knew was false and which charge the defendant manufactured and *Page 102 fabricated for the purpose and with the intent of defrauding and depriving plaintiff of his money." That by reason thereof the plaintiff had been damaged in the sum of $2,500.00, for which he demanded judgment.
The defendant in its answer, after admitting its corporate capacity, set up a general denial to the complaint.
The case was tried before his Honor, Judge Wilson, and a jury, in November, 1930. I will pass by the motions of the defendant to strike out certain allegations of the complaint, and for leave to answer anew, for the reason that I am satisfied with the disposition of the exceptions made in the opinion of Mr. Justice Carter, in reference to these matters. The jury returned a verdict in favor of the plaintiff for $500.00 actual and $350.00 punitive damages, and, from the judgment entered thereon, the defendant has appealed.
The question that I shall discuss is whether the defendant's motion for a directed verdict as to actual and punitive damages, either or both, should have been granted.
The plaintiff has selected the battle ground of his controversy, namely, that he is entitled to a return of the deposit for the reason that he has fully accounted for all money and property that came into his possession as manager, and "that no deficit or liability existed from the plaintiff to the defendant at the time of the plaintiff's leaving."
I think that the plaintiff has utterly failed, according to his own admissions, in carrying this burden upon which he has based his right to recover any part of the deposit at this time and in this proceeding.
The plaintiff's only evidence of an accounting was the production of Exhibit A. It was a mere checking of the cash and stock on hand when the management was being turned over to his successor; simply a checking of the physical properties. It shows the amount of cash on hand, $11.95, and stock, $91.84, which was turned over by the plaintiff to his successor. It does not purport to state an account between the plaintiff and the defendant. There was nothing *Page 103 therefore to go to the jury upon the basis of the plaintiff's alleged right to recover the deposit. The defendant was entitled to something more than an inventory of the physical properties and money on hand at the time of the transfer. It was entitled to a full audit of his accounts and a settlement in accordance therewith before the security was surrendered. He has not undertaken in any degree to perform this duty, though importuned by the defendant to do so. His energies have been explained in attempting to explain discrepancies which he could not deny. It is proposed to punish the defendant because, while demanding explanations which it had the right to demand, it retained the deposit which it had the right to retain.
When we come to consider plaintiff's second basis for his alleged right to recover, to wit, that no deficit or liability existed from him to the defendant at the time he left its employ, we find the record exhibiting the same absolute lack of evidence to support his claim. On the contrary, the record shows affirmatively that he did not account for all the moneys that came into his hands while in the employ of the defendant and that there was deficit by reason thereof. The weekly sales reports were record evidence made by him, and by him alone, and they showed, or purported to show, and they would have the company and the world believe that they showed, the true status of the operations of the business put in his charge.
That the plaintiff collected from the lieutenant of the Marines, for meals furnished the men, on April 9, 1930, is irrefutable, as the defendant produced his written receipt therefor, the signature to which and the fact that the meals were furnished by the plaintiff were acknowledged by him as a witness on the stand. This item does not appear upon the plaintiff's daily report made weekly. On the report for the week beginning April 6th and ending April 12th, submitted by the plaintiff, the item for April 9th, the day the meals were furnished, appears in the column headed "Cash Sales," as $45.10. The plaintiff attempts, as an explanation, that he *Page 104 and the company preferred that the unusual item of $75.75 would not be in line with the normal receipts, and that for that reason he prorated it among the other days, whether of that week or not he does not state. This unquestionably was a breach of duty on his part; his duty was to state honestly the receipts of each day. His arrangements, if true, rendered it impossible of verification, and, but for the fact that an investigation was made, which developed the fact that he had collected the money, it would never have appeared; even now it is impossible to say that all of it was prorated. It presented the opportunity, against which the company had no protection, for him to report the normal receipts, using so much of the $75.00 as may have been necessary to allay suspicion of wrongdoing. It is significant that not a word of this arrangement fell from his lips or pen until he took the stand as a witness in his own behalf, although he was importuned by letter and telegram to make an explanation to those who were conducting the audit of his accounts. He acknowledged that he collected the money; his report fails to show he accounted for it; he admits that he held out a part of it each day; he expects this Court to reach the "lame and impotent conclusion" that he performed his duty in this particular. Regardless of whether he subsequently, on other days, accounted for the $75.00, does not sustain his contention, the basis of his claim, that he had made a fair and faithful account of his stewardship.
Another serious irregularity appears in connection with the lunches furnished for the picnic at Hartsville. The plaintiff admits that he supplied the lunches and billed the party who ordered them with $734.50 on July 4, 1929, and that he collected for them the following checks:
July 2 ..................................... $200.00
July 6 ...................................... 400.00
July 8 ...................................... 134.50
_______
Total ................................ $734.50
*Page 105
His reports for that date do not show the receipt by him of any one of the three checks. He attempts to explain this by saying that he purchased the supplies on temporary credit and paid for them out of the proceeds of the checks which were made payable to and indorsed by him. He presented bills amounting to $718.84, and claims to have credited the company with the difference $15.66. The evidence is that there was a profit of 25 cents at least upon each of the 1,550 lunches, $387.50, for which the company was credited with $15.66.
There is no assurance that the bills amounting to $718.84 represented supplies used solely for the lunches. For instance, they include 783 pounds of "friers" (chickens), half a pound of chicken for each sandwich. The normal method of keeping the account would have been to charge himself with the checks received and credit himself with the cost of the supplies purchased. If all that he says is true, he has failed far from showing a fair and faithful accounting, and that he owes the defendant nothing, the basis of his claim for a return of the deposit.
As to the verdict of $350.00 punitive damages: The basis of such damages is a malicious spirit upon the part of the defendant against the plaintiff. The evidence, far from exhibiting such a spirit, shows the utmost consideration of the plaintiff while exercising an unquestioned right, one that was recognized by the plaintiff himself, for he writes on May 20th that the defendant "have had plenty of time to check my account."
After the transfer of the cash on hand from the plaintiff to the incoming manager, the defendant certainly had the right to audit his account, a matter that was not involved in the statement of May 4th, the transfer statement, and the defendant proceeded with the audit, which of course took some time.
On May 15th, the plaintiff, becoming impatient, telegraphed for the return of his deposit; the defendant on the same day responded by wire: "Your account in process of audit. Settlement will follow without delay." *Page 106
On May 20th the defendant wrote the plaintiff inclosing a letter from its comptroller calling attention to the meals furnished the Marines, dated May 19th, and politely asking the plaintiff for his co-operation in explanation of the item, promising a settlement "as soon as possible," and adding: "I hope you have not been inconvenienced by the delay in closing your accounting, and trust you will be able to explain matters to the satisfaction of our Comptroller." The letter of the comptroller was a complaint that proper returns for the meals to the Marines had not been made, adding: "While this investigation is being made we feel that the former agent should give us a clean story so as to expedite the audit of his account as much as possible and enable us to make settlement at the earliest possible date."
Although this letter was addressed to the home of the plaintiff, he claimed not to have received it.
On May 28th the plaintiff wired peremptorily: "Forward security at once."
On May 29th the defendant responded by wire: "Your wire received. Audit being held due to your failure to reply to letters of May 20th."
On May 31st the defendant forwarded copies of the letters of May 19th and 20th to the plaintiff, who replied on June 2d denying that he had collected for meals furnished the Marines on February 8th and May 14th and threatening suit if the deposit was not remitted by the following Thursday. It appears that no reference was made in either the letter of the comptroller or in the letter of the plaintiff to the admitted collection of April 9th.
On June 14th the present action was instituted.
If there is the slightest evidence in the case sustaining or tending to sustain the charge of the plaintiff that the defendant acted maliciously in fabricating a charge against him in order that the defendant might steal the deposit, I have been unable to find it. All through the transactions the defendant has acted with the utmost consideration of the plaintiff in the exercise of an unquestionable right to hold *Page 107 the deposit until the skirts of the plaintiff have been cleared by an audit and a full and fair accounting had been made by him.
This appeal should be decided upon the issue proffered by the plaintiff, that he is entitled to the return of the deposit because he had fully accounted to the defendant for all of the money and property in his possession as manager and was not indebted to the defendant for any deficit whatever. His own testimony refutes this claim, for it shows unquestionably that he has not made an accounting to the defendant. That the defendant had the right to withhold the deposit until this was done appears beyond controversy, and it has been often decided by this Court, notably in the cases of Tolbert v. Roark, 126 S.C. 207, 119 S.E., 571, andScott v. Newell, 146 S.C. 385, 144 S.E., 82, that one in the exercise, bona fide, of a legal right, cannot be said to have been guilty of a fraudulent act entitling the other party to punitive damages. The Courts have gone even to the extent of holding that he is immune when he is in the honest exercise of a supposed legal right. 8 R.C.L., 591.
I think therefore that the judgment of the Circuit Court should be reversed upon both items of actual and punitive damages, without prejudice to the right of the plaintiff to a return of the deposit upon his making a full accounting, the basis upon which he has pitched his right to recover.