It appears to me that the testimony on which the plaintiff (respondent here) was entitled to have his case submitted to the jury is very slight, almost to the point of being shadowy, rather than substantial. But I concur in the result of the opinion of Mr. Acting Associate Justice Bellinger on the following grounds: *Page 73
(1) The witness who testified to the incident involved in the second cause of action stated that Ingram, the representative of Pure Oil Company, was at the time in question checking on the equipment of a filling station which sold Pure Oil products. This tends to support respondent's claim that at such time Ingram was acting as zone manager of Pure Oil Company, as alleged in the complaint and admitted by the answer. There is much testimony in the case, offered on the part of both the plaintiff and of the defendant, from which an inference to the contrary may be drawn, but under the rules repeatedly declared by this Court respecting a conflict in the testimony, even in the testimony of a particular witness, there was probably enough in the statement above indicated, to carry the case to the jury on the question whether Ingram, at the time in question, could utter a slander that would involve liability on the corporate defendant. But it is not my thought that in the majority opinion this Court indicates a departure from the sound doctrine that a master is not liable for a tort committed by his servant, where at the time the servant was not engaged in the performance of work within the scope of his employment and where the tort is not within such scope of his employment. See for example, Murray v. So. B.T. T. Co., 103 S.C. 427,88 S.E., 31; Courtney v. Amer. Ry. Express Co., 120 S.C. 511,516, 113 S.E., 332, 24 A.L.R., 128; Hypes v.Sou. Ry. Co., 82 S.C. 315, 64 S.E., 395, 21 L.R.A. (N.S.), 873, 17 Ann. Cas., 620; Annotation, 40 A.L.R., 1212.
(2) The statement above referred to, though made in the course of the testimony relating to the second cause of action, was not the subject of any request on the part of appellant's counsel to limit it to the second cause of action. It therefore was equally applicable to the first cause of action, in view of the fact that the incidents in the two causes of action may have been found by the jury to have occurred at about the same time.
(3) The statements charged to be slanderous, even if not *Page 74 slanderous per se, had a direct relation to the business of the plaintiff. That business was the handling of the products of a manufacturer and of the proceeds of sale of the same, and the keeping of accounts relating to the business. On that alone, it was competent for the jury to find from all of the evidence, that the words charged to have been used were uttered and understood in the sense of imputing to the plaintiff dishonesty in the nature of larceny of embezzlement.
I have grave doubt whether the testimony relative to the incident stated in the first cause of action, standing alone, entitled the plaintiff to the benefit of the rule stated. But the testimony taken in connection with the incident referred to in the second cause of action was not limited to that cause of action, and since the two incidents may be found to have occurred at about the same time, it may be regarded as furnishing some basis upon which the jury could determine that the words in question were uttered and understood in the sense charged.
MESSRS. JUSTICES BONHAM and FISHBURNE concur.