69 Wash. 544 | Wash. | 1912
Plaintiff brought this action to recover damages for an alleged slander. He had been an employee of the defendant at a hotel in the city of Pasco. A part of the time he acted as auditor and clerk. His position may be described as that of a general factotum for his employer. He enjoyed his full trust and confidence, and seems to have managed the business without suggestion. Finally, defendant, being apprised of certain acts of the plaintiff, discharged him. This was done in the presence of others, and defendant is alleged to have used words that are actionable; that is, “thief” and “pimp.” We think no further statement of the case is necessary. Defendant made general denial, and pleaded mitigation, justification, and the truth of the words spoken. From a judgment in favor of plaintiff, defendant has appealed.
It is first contended that the word “thief” should have been withdrawn from the consideration of the jury, for the reason that the plaintiff admitted a state of facts which made him guilty of the crime of embezzlement. This the court refused to do, and upon the particular word instructed as follows:
The instruction is criticized because it leaves to the jury the determination of the question whether respondent took appellant’s money under a good faith claim made at the time, and that he was entitled to take it and pay an alleged debt, ignoring the only defense that would avail respondent; that is, a good faith claim of title to the property or money which was converted by him. This would ordinarily be so, for no man should be heard to plead the right to pay himself a debt out of the money of another, knowing that he has no title thereto. Good faith under such circumstances demands a presentment of the claim, but instructions cannot be measured as abstract statements. Their pertinence depends upon the facts of the particular case, and the abstract must be tempered to meet the real issue. The testimony shows that respondent had full charge of appellant’s business, receiving all moneys and paying all demands, including his own salary. We think, therefore, in respect to the question raised, that the instruction was drawn with a proper appreciation of the distinguishing features of the case.
Nor do we think that appellant’s motions to take the consideration of the word “thief” away from the jury should have been granted. Whether the use of the word was justified, or whether appellant showed by a preponderance of the evidence a state of facts warranting an inference of guilt, was for the jury; although we have no hesitation in saying that, were we free to pass upon the question as one of law,
In submitting the word “pimp” to the jury, the court said:
“To charge a man with being a pimp charges him with a commission of an offense or offenses against the laws of the state and which aré punishable. The legal definition of the word pimp is: One who solicits other men to go to houses or places of prostitution for immoral purposes; or who solicits men to associate with prostitutes for immoral purposes; or one who in some way procures for others the means of gratifying their passions; or one who lives wholly or in part upon the earnings of an immoral woman earned by immoral practices of prostitution.”
It will be seen that the court had adopted § 2440, Rem. & Bal. Code (omitting the words contained therein “every person who shall live with a common prostitute”), as a comprehensive definition of the term. Appellant requested the court to instruct the jury that, if they found from the testimony
Because of these errors, appellant’s motion for a new trial should have been sustained. Wherefore the judgment of the lower court is reversed, and the case remanded for further proceedings.
Gose, Crow, Parker, and Ellis, JJ., concur.