Iden v. Evans Model Laundry

236 N.W. 444, 121 Neb. 184, 1931 Neb. LEXIS 125

• Court: Nebraska Supreme Court
• Decided: May 8, 1931
• Docket: No. 27484
• Status: Published

Opinions

Rose, J.

This is an action to recover $2,000 in damages for slander. Plaintiff was an employee in defendant’s laundry in Omaha and with other female employees was thus engaged May 21, 1929. She called at the office of defendant in the laundry building for her wages. The petition contains the plea, in substance, that defendant’s manager, ■addressing plaintiff in the presence of others, and referring to another employee named Josephine Connor as “this girl” and “this little girl,” then and there said: “Seems as though this girl has had some difficulty concerning her pay envelope and it seems as though you took it,” and “the best thing we can do is to take out of your money what ■this little girl has lost and give you the difference and dismiss you, because you are a thiefthus charging plaintiff with larceny and with having stolen the money of Josephine Connor. It is further alleged that these charges were false and damaged plaintiff in her reputation for honesty and uprightness — qualities essential to her employment in laundries, the means by which she supports herself and two children.

Defendant denied that its manager called plaintiff a thief, admitted he stated to her in a conversation relating to the pay envelope of Josephine Connor that “the best thing we can do is to take out of your money what this little girl has lost and give you the difference,” or words to that effect, and pleaded that the communication and occasion were privileged, plaintiff and other employees only being present; that reported disappearance of'the pay envelope came to the notice of defendant’s manager through Josephine Connor, Della Gooddell, and Nora Neubauer, employees in the laundry; that the manager acted in good faith, without malice or intention to cause plaintiff loss or injury, in the honest belief that what he said was essential to the safety and welfare of employees and the best interests of defendant; that plaintiff became huffy and left the office, saying she would see her attorney; that defendant thereupon paid plaintiff her wages in full, and that she was no longer an employee of defendant.

In a reply to the answer, plaintiff specifically denied that defendant paid her wages in full May 21, 1929, and alleged that the amount due her, including costs, was paid by defendant to the clerk of the municipal court June 13, 1929, in an action therein pending. Other unadmitted allegations of the answer were also denied.

Upon a trial of the issues, the jury returned a verdict in favor of plaintiff for $1,500. From a judgment therefor, defendant appealed.

It is argued on appeal that the evidence is insufficient to sustain the verdict. As pleaded in the petition, the oral expressions addressed by defendant’s manager to plaintiff were of themselves slanderous. An examination of the entire record leads to the conclusion that evidence, believed by the jury, as it was, proved the following facts: Defendant’s manager called plaintiff a thief at the time and place and under the circumstances alleged by her; that the charge was false and that it was published by defendant ; that plaintiff was dismissed from defendant’s employ with infamy on her name; that defendant’s manager in uttering the slander was prompted by actual or express malice, independently of privilege which was pleaded as a defense; that there was no sufficient inquiry into the facts or legal excuse for the false and defamatory utterance. In addition to the evidence of facts summarized, defendant admitted in its answer what amounts to an implication that plaintiff stole Josephine Conner’s pay envelope. The admission is that the manager said: “The best thing we can do is to take out of your money what this little girl has lost and give you the difference”— an admission implying that defendant accused plaintiff of being a thief. Malice is presumed from the false, oral, published charge that plaintiff was a thief. Circumstances tend to show express malice. Express “malice” creating liability for a false, published accusation of crime, notwithstanding the occasion for a qualified privilege, does not mean hatred or ill will, but want of legal excuse for the false and defamatory utterance. In 1909 the law was announced as follows:

“Malice in law will be presumed from the publication of an article libelous per se, and that presumption will become conclusive unless the truth of the libel is established. Such malice does not mean hatred or ill will, but the want of legal excuse for the publication. Damages will also be presumed from the publication of an article libelous per se.” Sheibley v. Nelson, 84 Neb. 393. See, also, Estelle v. Daily News Publishing Co., 99 Neb. 397; Peterson v. Cleaver, 105 Neb. 438; Hall v. Rice, 117 Neb. 813.

The evidence, in view of the law applicable thereto, fully sustains the verdict of the jury and the judgment of the district court.

Instructions on the law applicable to privileged communications are criticised as inconsistent and as prejudicial to defendant. Construed as a whole, as they should be, they do not contain prejudicial error. So construed, they fully and fairly stated the law applicable to the issues of fact and the evidence. Any errors in instructions considered separately were not prejudicial to defendant. By the charge as a whole the jury were not permitted to return a verdict in favor of plaintiff without finding actual or express malice on the part of defendant. The recovery does not seem to be excessive. The entire record has been examined without finding a reversible error.

Affirmed.