*1 WEIR, Respondent James v. CITICORP NATIONAL SERVICES, INC., Appellant.
(435 (2d) Supreme Court *2 Julianne Farnsworth and Rebecca G. Fulmer, both of Mc- Nair Firm, Law P.A., Columbia, appellant. R.
Kenneth Jr. Young, and Lohman Reiter, D. II, both of Young, Young &Reiter, Sumter,for respondent. May 4, 1993.
Heard
Decided Sept. 20, 1993. Reh. Den. 20, 1993. Oct.
Moore, Justice: This ais libel action. The jury awarded Respondent James $25,000.00 Weir actual damages and $500,000.00punitive dam- ages. The trial judge granted a new trial nisi remittitur $275,000.00as to the punitive damages. We affirm.
FACTS In August 1988, Weir, a real estate agent, discussed buying a van with Burdette Motors. Weir signed a motor vehicle sales installment contract and security agreement, a motor vehicle service contract, and a power of all attorney dated Au- gust 5, 1988, and a credit application dated August 1, 1988. Burdette Motors subsequently assigned the contract to Ap- pellant Citicorp National Services, Inc. (Citicorp), on August 5,1988, for $26,420.00.Weir testified he decided not to buy the prior van to taking possession and informed Burdette Motors of his decision.
Citicorp sent Weir a late payment notice in October 1988. In late 1988, Weir became interested in buying house. On Jan- uary 5, 1989, Weir signed a contract on the house which in- contin- financing the standard removing addendum an eluded commit- to obtain was contract, Weir to the Pursuant gency. 1989, with 15, January before financing for letter ment 1,1989. to April prior take place closing a balance 1989, showed 26, January on report credit Weir’s debt-to-income overall increased which Citicorp owed accounts any delinquent contain however, did It, ratio. at- Weir satisfactory. reported credit Weir’s and let- three writing by account Citicorp remove tempted report credit a second 1989, april On Citicorp. ters Weir When delinquent. Citicorp with account showed on sued house of the the sellers financing, to obtain unable $16,944.28judgment. awarded were and contract estate real derogatory all removed Citicorp in October Eventually, problem labeled and report credit Weir’s from remarks fraud.” “dealer the account with ac- seeking against action libel brought Citicorp’s denied judge trial The damages. and punitive tual a verdict returned The jury verdict. a directed for motions dam- punitive in $500,000.00 and in actual $25,000.00 notwithstanding a judgment for motions made ages. also absolute, which trial new (JNOV) and a the verdict a new motion Citicorp’s granted judge trial The denied. damage reducing thereby nisi remittitur trial Citicorp appeals. $275,00.00. award
ISSUES mo- grant failing err Did the JNOV? verdict for directed tions from two to admit failing err Did *4 to Weir? Citicorp evidence? other excluding in err judge 3) the trial Did motions Citicorp’s granting in not err 4) judge trial Did the excessive? verdict the ground the new on for a due violate award the Does rights? process
DISCUSSION motions and JNOV verdict Directed motions its denying in erred the argues Citicorp In grounds. on several based and JNOV verdict for directed motion, a directed verdict reviewing Court must view the evidence and all reasonable inferences in the light most favor- able to the the motion. party opposing Santee Portland Ce- (2d) 269, ment Co. v. Daniel Int. 384 S.E. Corp., (1989).
First, the Citicorp argues communication was true. The truth of the communication is considered a com- § plete defense. 50 Am. Jur. Libel And Slander (1970). it the debt owed to it Citicorp argues reported based signed sales contract and thus it the upon argues report was true. Weir contends he did not buy van and there was and, therefore, not a contract the damaging report credit false. When the truth of the in defamatory communication is dispute, jury issue is Id. question.
Second, Citicorp argues it was entitled to the qualified defense. privilege South Carolina has the de adopted fense of qualified privilege for mercantile in agency on the credit financial respect reports of an in standing dividual or business concern in confidentially, communicated business, course of and in faith regular good sub having scriber an interest matter. particular Cullum (1955). Bradstreet, Inc., Dun & 228 S.C. 90 S.E. In 651, 207 Thornton v. New South Ins. 262 S.C. Life (1974), the Court interpreted holding Cullum so as not to of actual require proof negligence. The Court held the if privilege qualified is and will be lost acted mali agency ciously disregard duty or reckless of its to exercise reason able care to make a fair and accurate Id. report. moved for a directed verdict on the
Citicorp ground trial, had malice. At failed establish Weir duty contended had failed to exercise its Citicorp correct the Weir introduced evidence that he had con- report. many tacted about account times without success. There was sufficient evidence in the record to submit to the the issue whether acted or with mal- jury recklessly Therefore, ice. the trial did not err in denying Citicorp’s motion for a directed verdict.
Third, Weir assumed the risk when he Citicorp alleges entered the real estate contract and deleted the financ- Weir could not have ing contingency. Citicorp argues met the 15th deadline for the commitment January financing
516 around until financing for failed to apply he because letter trial, however, at presented evidence was January 21st. There pursue did not contract the real estate to that the other party failing from Weir for flowed sued damages the breach and been have ac- could alleged which Weir 1st by April close to The trial report. credit for the erroneous but complished jury. this issue to the in submitting err did not in failing erred trial judge the argues Lastly, Citicorp there was on ground motion for JNOV to its grant $25,000 an award of to support evidence not sufficient only proved Weir contends damages. Citicorp actual dam- general and he entitled $16,944.28 damages actual $16,944.28 prove the judgment offered Weir ages. prove general judgment also offered the damages. in deny- not err trial judge The did his reputation. JNOV motion. ing ruled inadmissible Letters he held two erred when let- the trial judge
Citicorp argues Citicorp sought were inadmissible. to Weir from ters notice of ac- was on to show Weir introduce the letters objected contract. Weir estate entering real prior count not qualified Citicorp employee ground on the letters The trial held were mailed. the letters testify letters and receiving Weir denied because inadmissible knowl- testify with personal could not Citicorp employee were mailed. that the letters edge matter of discretion and is a of evidence Admissibility law, this or an discretion error abuse of absent an v. ruling. trial court’s disturb the will not Court Hofer (1989). (2d) A 736 rebuttable Clair, 298 S.C. 503, 381 S.E. St. of mailing the evidence upon established is presumption Ford Motor Credit v. Foster letter. addressed properly (1990). (2d) However, merely this is S.E. admissi- affect and does not receipt regarding presumption letters on this excluding erred in The bility. ground. however, estáb letters, must be authenticity
The evidence. JKT admitted into they may be lished before (1980); Hardwick, 413, 265 S.E. v.Co. 274 S.C. Motors, Inc., 209 S.C. 407, 40 Milling-Nelson Williams (1946). adequately proffer We find failed to *6 the Al- the of its witness to authenticate letters. qualifications incorrect, trial though judge’s ruling may the basis for the be the were to A correct deci- subject we find letters exclusion. sion of the trial court on the will affirmed on wrong ground be Moorhead v. First Piedmont Bank & Trust 273 appeal. (2d) (1979). 356, Therefore, 256 414 the trial S.E. we hold in did not abuse his discretion the letters. judge excluding Furthermore, we do not see how the exclusion of these First State Sav. & Loan v. prejudiced Citicorp. (1989) (2d) (to 441, Phelps, 299 S.C. 385 S.E. 821 re verse the trial court’s exclusion of evidence a must show party prejudice). both error and Weir testified he had notice of the he with the problem Citicorp prior entering had account to the real estate contract. The letters cumulative merely evidence to establish Weir had notice of the ac delinquent Inc., Bridgebuilders, v. Citicorp. Taylor count with 275 S.C. (2d) (1980). 236, Therefore, 269 S.E. we hold the exclusion prejudicial of the letters was not error.1 evidentiary rulings Other in judge refusing contends the trial erred to Citicorp pieces admit other of evidence. to in- Citicorp sought troduce evidence a separate judgment against of his in the reputation community already show was dam- The trial refused aged by previous judgment. judge the judgment admit into evidence because there was evidence was not entered on the roll. judgment judgment We find Hofer, supra. no abuse of discretion.
4) Excessiveness of verdict the trial should have a
Citicorp alleges judge granted new trial absolute the verdict was ex- grossly because a new trial nisi remit- cessive. The trial judge granted titur the award of thereby reducing punitive damages prejudiced by The hold was the exclusion. The dissent would dis- failure call Atlanta sent focuses on Weir’s number contained proffered support prejudiced by letters to conclusion supports the exclusion of the letters. Weir’s failure to call the Atlanta number his contention that he never received the letters which contained the number. distance, choice, Furthermore, people calling long given when if a would most a dial toll-free number. inadequate grossly verdict is of the If amount $275,000.00. preju caprice, of passion, the result to be so excessive or trial evidence, influence outside dice, some other or trial failure of the The new trial absolute. a grant must amounts in this situation absolute new grant will Court grant appeal and on discretion an abuse 202, 166 Blackmon, 252 S.C. Mickle v. new absolute. (2d) 127, 165 S.E. 252 S.C. Crawford, (1969);Zorn v. grossly the verdict (1969). amount of hold the We net value. light excessive, especially of punitive Review re- is posttrial hearing separate Citicorp contends awards. In Gamble Steven- review quired Pa- (1991),applying 104,406 S.E. son, 305 S.C. 1, 111S.Ct. 499 U.S. *7 v. Haslip, Ins. Co. Mutual Life cific rule requiring set forth (1991),this Court 1 L.Ed. a whether to determine review posttrial make a to judges We decline challenge. constitutional withstands award hearing. separate posttrial require Gamble interpret support record does argues Citicorp also factors. The of the as to some findings trial judge’s However, he from Gamble. the factors set out factor. fact for Gamble of each findings specific to make failed the factors. may consider the trial states court specifically findings make required is not Gamble, trial court Under record, carefully reviewing After for each factor. of fact the punitive of review judge’s in the trial error find no we (2d) 1338, 1351 F. Skateway, Hugo’s award. Johnson Ins. v. Reserve (4th Eichenseer (citing Cir. Life in the evidence (5th sufficient (finding Cir. F. uphold- and factors Haslip the seven satisfy three record to award)). ing the
Affirmed. JJ., concur. Finney,
Harwell, C.J., Chandler opinion. J., separate Toal, dissents Justice, Toal, dissenting: were admis- I hold letters would dissent. respectfully
I
Act
Evidence
as
Records
Business
under the
sible
Uniform
(hereinafter “Act”), S.C.
(1985).1
§
Code Ann.
19-5-510
Citi
corp
barred from
admitting
letters on the grounds
that the witness could not testify as to his own personal
that the
knowledge
letters were mailed. There was
objec
no
tion made based on the failure to
lay foundation under the
Act. Nevertheless,
part
of Citicorp’s proffer, the attorney
for Citicorp informed the court that Citicorp’s witness would
testify as to the procedures for the
of these
sending
letters. I
would hold this was adequate proffer to satisfy the Act. Chan
dler v. People's
Bank,
National
I also disagree with the majority’s determination that Citi- corp was not prejudiced by the error. Mr. Weir admitted to having received letter from Citicorp sometime in October. However, Weir maintained he believed letter was in ref- erence a charge card his wife had. The letters Citicorp sought admit were dated in August and They November. both clearly referred to an automobile loan. Additionally, Weir maintained he repeatedly called Citicorp’s toll-free num- ber and was completely frustrated in his attempts rectify this situation. Although no records the calls to a toll-free number evidence, it is apparent the jury relied on Weir’s telephone experiences support its award of punitive damages. The which Citicorp was prevented from ad- mitting, however, do not give a toll-free number but an At- lanta number and address. There is no evidence Mr. Weir made calls to the any Atlanta number.
The majority maintains that the error was not prejudicial as *8 the letters were cumulative since Weir admitted he notice had of the problem. I agree Weir admitted he received written no- tification from Citicorp. The majority then inconsistently that the maintains failure to call the Atlanta number was evi- dence he did not receive these letters. The majority further opines that most when people, calling long distance, if a given provision provides This part: act, A record of an shall, condition or relevant, event compe- insofar as be tent evidence if qualified the custodian or other witness testifies to its
identity and preparation, of mode its and if it regular was made business, course of act, or at near the time of the condition or event and if, opinion court, in the of information, of sources method and time preparation of justify such as to its admission. I Most choice, disagree. people, dial a toll-free number. would financially are held they being responsi- after informed being they own, given spe- when ble for on van did payments Especially call, given. would call the number cific number contends, no relief when when, they calling received I would hold denial Accordingly, the toll-free number. and prejudicial the admission these and new trial. warrants reversal CAROLINA, OF AMERICAN SERVICE CORPORATION SOUTH HICKLE, Appellant Respondent. v. Bonnie L. (435 Supreme Court P.A., Island, Hale, Hale Hilton Head James O. of Hale appellant. for Feldman, A. Charleston,
H. North Stanley Terry Finger, Island, Hilton respondent. Head 8, 1993. Heard June 20, 1993. Sept.
Decided