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. *Page 327
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 *Page 328 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, *Page 329 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.