103 Va. 504 | Va. | 1905
delivered the opinion of the court.
Plaintiff in error, Ellen J. Farley, a young lady of twenty-three years of age, was, on the 5th day of November, 1900, and for some months prior, in the employ, as a clerk or saleswoman, of Isaac & Moses Thalhimer, in their dry-goods store conducted on Broad street, in the city of Bichmond, under the firm name of Thalhimer Bros., and on the morning of the 6th of November, 1900, she was discharged from her employment by Moses Thalhimer, on the alleged ground that she had on the day before been guilty of the theft of a handkerchief and two yards of ribbon from a different department of the store to that in which she was employed.
This action is brought by the plaintiff in error against the defendant in error, Moses Thalhimer, to recover damages for slanderous and insulting words, alleged to have been used by defendant in error on the occasion of the discharge of the plaintiff in error, and on a subsequent date, January 11, 1901, when she visited the store of Thalhimer Bros, to collect a balance due her on her salary at the time of her discharge.
The declaration contains four counts. The first count alleges that on the morning of November 5 plaintiff in error purchased at the store of Thalhimer Bros, a handkerchief and two yards of ribbon, and openly deposited the same in an open cabinet drawer until the evening of that day, when she carried them with her when she left the store after that day’s employment ; that on her return the next morning defendant in error called her “around to one side” of the store, and falsely and
Defendant in error responding to the demand of plaintiff in error for a statement of his defenses, answered: “First, not guilty; second, that while he did not use the language set forth in the declaration, he did accuse her of having stolen a handkerchief and a piece of ribbon from the store of Thalhimer Brothers; third, that the charge was true; fourth, privileged communications; and it is agreed as to the second defense the defendant bears the same responsibility as if a plea of justification had been entered formerly.”
“The jury are instructed that it appearing from all the evidence that the words charged in the first and second counts of the declaration to have been spoken by the defendant were, if spoken at all, spoken in the defendant’s place of business to the plaintiff, or to one or more of his employees, and must be regarded as privileged communications.
“And it further appearing from all the evidence that the words charged in the third and fourth counts of the declaration to have been spoken by defendant, if spoken at all, were spoken to the plaintiff and her friends whom she had brought with her as participants with her in an interview sought by them with the defendant in his place of business — they must equally be regarded as privileged communications.
“'And there being no evidence to justify an imputation to the defendant of actual malice, the jury must find for the defendant.”
The jury returned their verdict in these words: “We, the jury, upon the issue joined, find for the defendant upon the instructions of the court.”
It seems too well settled in this State to admit of extended discussion that while it is within the province of the trial court to determine whether or not the occasion when alleged slanderous or insulting words were spoken or written was privileged; whether they were spoken or written with or without malice is a question for the jury under proper instructions. Dillard v. Collins, 25 Gratt. 353; Chaffin v. Lynch, 83 Va. 106, 1 S. E. 803, s. c. Ib. 884, 6 S. E. 474; Strode v. Clements, 90 Va. 557,
It is true, as was held in Reusch v. Roanoke, &c. Co., supra, the court may properly refuse an instruction submitting the question of malice to the jury where “there is no legal evidence in the record to suggest malice,” but where there is evidence tending to show malice in the utterance of the words spoken, or in the published communication, that question cannot be properly taken from the jury.
“Where the defendant acts in performance of a duty, legal or social, or in defense of his own interests, the occasion is privileged, .... but strong or violent language, disproportional to the occasion, may raise an inference of malice, and thus lose the privilege that would otherwise attach to it.” Tyree v. Harrison, supra.
It is also true, as contended by the learned counsel for defendant in error, that where the words complained of were privileged communications, the burden is upon the plaintiff to prove actual malice before he can be entitled to a recovery. The plaintiff in such a case must show malice, either by construction of the spoken or written matter, or by facts or circumstances connected with that matter, or in the situation of the parties, adequate to authorize the conclusion. Dillard v. Collins, supra. But, though the occasion is privileged, strong and violent language, disproportioned to the occasion, may raise an inference of malice, and thus obviate the privilege that would otherwise attach to it, and whether such an inference is to be drawn from the language used or the circumstances in which it is used, etc., is a question for the jury. The questions of good faith, belief in the truth of the statement, and the existence of actual malice remain also for the jury. Tyree v. Harrison, supra, and authorities cited.
As ivas said in the opinion in Dillard v. Collins, supra, “The
We do not mean to question at all the soundness of the ruling in Reusch v. Roanoke, &c. Co., supra, and other authorities cited and relied on by defendant in error, that the trial court may properly refuse an instruction submitting the question of malice to the jury “when •there is no legal evidence in the record to suggest malice,” &c., or may not instruct the jury in such a case that there is not such evidence in the record, but we do mean to say that when there is any legal evidence in the case tending to prove that the language spoken or written was disproportional in strength and violence to the occasion when spoken or written, though the occasion was privileged, which may raise an inference of malice, thereby destroying the privilege that would otherwise attach to it, the question of malice in the use of the words spoken or written cannot be properly taken from the jury.
As the case at bar has to be remanded for a new trial because of the ez’ror in not leaving to the jury the question whether the woz’ds alleged as slanderous were spoken maliciously or not, and in giving the court’s own instznzction, above set out, taking that question from the jury, we refrain from reviewing the evidence further than is necessary, in our opinion, to justify that conclusion.
It is an admitted fact that the plaintiff in erroz-, on November 5, 1900, obtained a handkerchief and a piece of ribbon from the
As to the charge in the third and fourth counts of the declaration, plaintiff in error testified as follows:
“Well, on the 17th of January father was sick, and I was out of employment and could not get work, and I needed this money, and being on the street with my aunt, I asked her to go in with me as I asked Mr. Moses (Thalhimer) for the money, and she consented to go with me, and when we went in I asked for Moses Thalhimer' — asked one of the girls — and when he came to me I told him that when he discharged me he owed me for a week and three days, and I had come for a settlement. He replied: ‘You won’t get it; it took you a long time for you to find out that I owed you anything, and it will take you still longer to collect it.’ He says: ‘You know how to collect it. Go ahead and collect it.’ He says: ‘I find you are looking for trouble, and you will get it. I let you down easy.’ He said: ‘You came into this store once before — for what?’ He said: ‘You had a gall to come in here before all these ladies who
The plaintiff in error was corroborated in her statement as to the occurrences of January 17, 1901, very fully by her aunts, Mrs. Pugh and Mrs. Parley, who accompanied her to Thalhimer Bros’, store, and to some extent, at least, by other witnesses as to the occurrences of PTovember 6, 1900; while defendant in error, testifying in his own behalf, denied the use of the language charged in the declaration, and the statements made by plaintiff in error, but insisting that the charge he made, that the handkerchief and ribbon had been stolen, was true, and he is corroborated by other witnesses examined in his behalf. Therefore, there was a conflict in the evidence throughout on every material question in the case, and it was for the jury to determine the credibility of the witnesses and the weight to be given to their statements. In other words, there was evidence tending to sustain the theory of plaintiff in error, and hence the question of whether there was malice on the part of defendant in error should have been submitted to the jury.
We are, therefore, of opinion that the Circuit Court erred in taking from the jury the question, whether the words alleged as slanderous were spoken maliciously or not, and the judgment complained of must be reversed, and the cause remanded for a new trial to be had in accordance with this opinion.
Reversed.