Rosenberg v. Mason

• Decision Date: 17 September 1931
• Citation: 160 S.E. 190
• Court: Virginia Supreme Court
• Parties: ROSENBERG v. MASON.

160 S.E. 190

ROSENBERG

v.MASON.

Supreme Court of Appeals of Virginia.

Sept. 17, 1931.

[COPYRIGHT MATERIAL OMITTED.]

Error to Law and Chancery Court of City of Roanoke.

Action by notice of motion for judgment by Mary Etta Mason against Harry Rosenberg. Judgment for plaintiff, and defendant brings error.

Reversed, and final judgment entered for defendant.

Argued before CAMPBELL, HOLT, EPES, HUBGINS, and GREGORY, JJ.

A. B. Hunt and Samuel M. Weinstein, both of Roanoke, for plaintiff in error.

Victor H. Friend and Horace M. Fox, both of Roanoke, for defendant in error.

EPES, J.

Harry Rosenberg owned and operated a retail store in the city of Roanoke under the name of National Clothiers, and employed Herman Feldman as the manager of this business. Feldman in his capacity as manager had authority to employ and discharge the other employees. Mrs. Mary Etta Mason, a young woman 28 years of age, had been employed by Rosenberg before Feldman had been employed and continued to work in the office department of this business from February, 1926, until she was discharged by Feldman on October 10, 1929.

In May, 1930, Mrs. Mason instituted her action, by notice of motion for judgment, in the court of law and chancery of the city of Roanoke against Harry Rosenberg as the sole defendant, seeking to recover $5,000 for insulting words used to her by Feldman at the time he discharged her.

The action was brought under section 5781, Code Va. 1919, for the use of insulting words. The notice, which contains but one count, alleges that Harry Rosenberg, through his agent, servant, and representative, Herman Feldman, "spoke of and concerning and to the undersigned (Mary Etta Mason) the false, scandalous, malicious, and defamatory and insulting words following, which are from their usual construction and common acceptation construed as insults and tend to violence and breach of the peace, * * * to-wit:

"Mrs. Mason, I guess this is quite a surprise to you, but I will have to let you go. I am doing this because things pop up. I have a couple of receipts in your handwriting, which are not entered in the book and the money is missing. It looks bad and I have to look out for myself so I will have to let you go. The reason I moved your office upstairs was to get your office away from the cash. You see I have to protect myself."

Feldman, introduced as a witness by Rosenberg, admitted that he spoke to Mrs Mason substantially the words alleged other than those which we have italicized, but denies that he used the italicized words.

Rosenberg filed a plea of not guilty and his grounds of defense, but filed no plea of justification. His grounds of defense are rather a rambling statement, but it in effect set up the following defenses: (1) Feldman did not speak to or of Mrs Mason the words alleged in the notice; (2) such words as were spoken by Feldman to Mrs. Mason were spoken on a privileged occasion, and the privilege of the occasion was not abused; (3) if the words alleged were used by Feldman to Mrs. Mason, Rosenberg did not know of, acquiesce in, ratify, or confirm them; (4) If Feldman ever used to Mrs. Mason words which were false, scandalous, or malicious, "it was not within the scope of his employment and was without the knowledge of this defendant."

The jury returned a verdict in favor of the plaintiff for $1,000 upon which the court entered judgment.

The only witness introduced by the plaintiff, other than three character witnesses, was the plaintiff herself. The portions of her testimony material to the questions here involved are quoted below without indication of the omitted questions and answers.

Direct examination:

"Q. When did your connection with the National Clothiers, Harry Rosenberg, proprietor and owner, and Feldman, manager, cease?

"A. Last October—a year ago this month.

"Q. Just tell the jury what happened.

"A. Mr. Feldman came to me and said 'Mrs. Mason, I guess this is quite a surprise to you this evening, but I will have to let you go.' I asked him why, and he said 'Well, those things pop up here in the office, I have two receipts in your handwriting—you give receipts to customers and no entry made in the book, and the money is missing'; and I said 'Mr. Feldman, that comes up once in a while, ' I said 'Today a colored man brought in a five dollar receipt that you had given him two weeks ago, and there wasn't any entry made'; and he said T have to look out for my own self, and I will have to let you go.' I said 'Does Harry Rosenberg know this?' He said 'Yes, I took it up with Harry two or three weeks ago and he said to let you go'; and he said he was having Mr. Ruble make an audit of the books, and the reason my office was moved to the second floor was to get me away from the cash and in order to protect himself he had to let me go.

"Q. You say that was on Saturday night at closing time?

"A. Yes, sir, nine o'clock at night.

"Q. Had you had any intimation prior to that time that he was going to fire you?

"A. No, sir.

"Q. Did you tell him (Mr. Rosenberg) what Mr. Feldman had said to you—what you just told the jury?

"A. I told Mr. Rosenberg before Mr. Ruble, the auditor, what Mr. Feldman had said to me. * * * I told Mr. Rosenberg exactly what I told here, what Mr. Feldman said to me, and then I told him to prove the fact.

"Q. Did he or not repudiate what Mr. Feldman had done and said—Mr. Rosenberg?

"A. Mr. Rosenberg told me that I should have come to him earlier, that he put me in there to watch Mr. Feldman and I should have come to him and told him about Mr. Feldman earlier.

"Q. You have told the jury that you told Mr. Rosenberg that Mr. Feldman stated that he would have to let you go because he had found receipts that were not entered on the books, and that he moved you upstairs to get you away from the cash. Did you or did you not tell Mr. Rosenberg that?

"A. Yes, sir, I told him.

"Q. Then what did Mr. Rosenberg say about those statements, if anything?

"A. He said that Mr. Feldman told him that he had made up a couple of ten dollar shortages.

"Q. All right, did Mr. Rosenberg rehire you or give you a job?

"A. No, sir.

"Q. Did you try to get another position?

"A. Yes, sir. About three days afterwards I called the manager of the A. & B. Clothing Store where I had worked four years before, and asked him for a job, and he said, 'Yes, Mrs. Mason, ' he said, 'Where are you?' I said, ‘I am at home, ' and he said, 'How soon can you get here?' and I said, 'It will be around three o'clock'—

"Q. Do you know why you didn't (get) it?

"A. The manager come in the store after I got there and said, 'Mrs. Mason, I am sorry I can't give you a job after talking to Mr. Feldman.' * * *"

Cross-examination:

"Q. Tell this jury whether or not when you went to Mr. Rosenberg if he said the slightest thing to you that was insulting or that offered you any affront in the world?

"A. No, sir.

"Q. He did not. Didn't you go to Mr. Rosenberg and ask him why you were fired?

"A. No, sir.

"Q. Didn't you also ask Mr. Ruble why you were fired?

"A. No, sir, Mr. Ruble didn't know I was fired when I walked in his office on Tuesday morning.

"Q. Weren't Mr. Ruble and Mr. Rosenberg both made acquainted with the fact that you were discharged right then and there (i. e., the Tuesday following) for the first time?

"A. No, sir. * * * Mr. Rosenberg knew it because Mr. Feldman had told me Saturday that he had taken it up with Mr. Harry and Mr. Harry told him two weeks ago to let me go.

"Q. When you were discharged there was not another soul that heard the words between you and Mr. Feldman, was there?

"A. Yes, sir.

"Q. Who?

"A. Miss Lane.

"Q. Anybody else?

"A. That is all.

"Q. Where is Miss Lane?

"A. I have not been able to locate her.

"Q. Well, if she heard it, she is the only one that heard it, isn't she?

"A. Yes, sir.

"Q. Isn't it true that Mr. Feldman on Saturday night called you off to yourself and told you that things were popping up there, and that he would have to let you go, that he was responsible and it made things look bad for him?

"A. He told me he had to protect himself.

"Q. And isn't that the reason that he gave you for letting you go, that he had to protect himself against entries which were inaccurrate—that is a fact, isn't it?

"A. (No response.)

"Q. When did you go to Mr. Harry Rosenberg, Mrs. Mason, about this matter?

"A. Tuesday morning.

"Q. Why did you go to him?

"A. Well, Mr. Rosenberg hired me—gave me the job, and I thought he should know it, so I went to Mr. Rosenberg and told him.

"Q. Tell us what you told Mr. Rosenberg now.

"A. I told Mr. Rosenberg Mr. Feldman said he had quite a surprise for me, and I asked him what it was, and he said he would have to let me go; I asked him why, and he said, 'Well, little things pop up, and I have two receipts in the office in your handwriting that are not entered on the book, and the money is missing, and I have to protect myself, and I am letting you go.' I asked if Mr. Harry Rosenberg knew this, and he said, 'Yes, I took it up with Harry two or three weeks ago and he told me to let you go'; and he told mehe was having Mr. Ruble make an audit of the books, and the reason my office was moved from the first floor to the second floor was to get me away from the cash.

"Q. What did Mr. Rosenberg tell you?

"A. He said I should have come to him earlier, that he put me in there to watch Mr. Feldman, and I should have come to him and told him earlier."

There are material conflicts between the testimony of the plaintiff and that of Harry Rosenberg, Herman Feldman, and other witnesses for the defendant, the most important of which is as to whether Feldman spoke to Mrs. Mason the words alleged in the notice which we have italicized. However, as there is nothing in the evidence introduced by the defendant which in any way tends to strengthen Mrs. Mason's case as made by her own testimony, it is not necessary to consider further the evidence which the court permitted to be introduced by the defendant.

While ...