123 Neb. 477 | Neb. | 1932
This is an action to recover $10,000 in damages for slander. In Omaha plaintiff was a salesgirl in a store owned by defendant F. W. Woolworth Company and managed by defendant Arthur Davis. The petition alleged that Davis, February 25, 1930, acting for himself and his employer, wrongfully and maliciously intending to slander, malign and injure plaintiff, told her in presence of co-employees that six cents found in her shoe did not belong to her; that she had stolen it from them and was a common thief. In explaining the presence of the money in her shoe she stated in her petition that she was required to deposit daily with defendants her purse, street shoes and other personal belongings before entering upon
Defendants in their answer denied unadmitted allegations of the petition, specifically denied the charges that Davis accused plaintiff of wrongfully taking the money, of stealing it and of calling her a common thief, and pleaded that, pursuant to a request of Davis who found money in her shoe on the evening of February 24, 1930, she came to him in the basement of the store the next morning — February 25, 1930; that he then and there informed her she had broken a rule by concealing money in her apparel; that he would be obliged to discharge her; that the conversation between them was conducted in a moderate tone of voice, was not sufficient to, and did not, attract the attention or notice of any other person and that plaintiff left quietly and unnoticed. The facts pleaded as a defense were put in issue by a reply.
Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $2,000 and from a judgment thereon defendants appealed.
The principal ground upon which defendants rely for a reversal is the insufficiency of the evidence to sustain the judgment. They directed a formidable argument to the proposition that plaintiff did not make á case for damages and that consequently the trial court erred in overruling a motion by them for a nonsuit. The evidence on behalf of both sides shows that, before the store was opened to customers on the morning after the coins had been found in the shoe, plaintiff and Davis had a conversation in the basement of the store in regard to that incident. What then and there occurred was the material inquiry. The store was conducted on two floors — the first
“I didn’t say anything. I looked down at my shoe and at him, and he said, ‘You stole some money from the store.’ I said, ‘What do you mean — that six cents I found?’ He said, ‘You didn’t find that. You stole it, you little thief.’ And I said, ‘Oh, no, Mr. Davis, I found it.’ He took me by the arm and said, ‘Don’t try to tell me that. You stole it. That is all there is to it.’ And he led me to the check room and he said, ‘We can’t have thieves around here.’ ”
Plaintiff testified further that Davis was angry and spoke in a loud tone of voice and that other employees were there where they could hear the conversation. The jury believed her evidence in preference to testimony of a different import and, for the purposes of appeal, their verdict established the fact that Davis, acting for himself and his employer, uttered in the presence of plaintiff and others the defamatory expressions pleaded in the petition — utterances of themselves slanderous. Confronted with the evidence and the verdict, defendants take the position that each employee present at the time, with the exception of plaintiff, denied hearing any defamatory words and that therefore the publication essential to an actionable slander was not proved, evidence of what was said to plaintiff and not heard by any one else being insufficient to show publication or resulting damages. The rule of law that defamatory utterances, to be actionable .as slanders, must be published or communicated to a third person is well understood, but there seems to be a fallacy in the argument applying the principle invoked to
One of the assignments of error assails the failure of the trial court to give a requested instruction to the effect plaintiff could not recover damages unless she proved by a preponderance of the evidence that Davis spoke the slanderous words which she imputed to him and that they were heard and understood by a third person. Defendants are not entitled to a reversal on this ground, for the reason that the entire charge contained instructions that the burden of proof was on plaintiff to satisfy the jury by a preponderance of the evidence that the slanders charged in the petition were spoken maliciously and were published; that publication is a communication of defamatory matter to some third person or persons; that the communication must be intelligible to such third person.
Other assignments of error have been considered with the entire record without finding an error prejudicial to' defendants.
Affirmed.