Farley v. Thalhimer

• Decision Date: 26 January 1905
• Parties: FARLEY v. THALHIMER.
• Court: Virginia Supreme Court

49 S.E. 644

103 Va. 504

FARLEY

v.THALHIMER.

Supreme Court of Appeals of Virginia.

Jan. 26, 1905.

SLANDER — PRIVILEGED COMMUNICATIONS — ABUSE OP PRIVILEGE—MALICE—BURDEN OF PROOF—QUESTIONS FOB JURY.

1. While it is within the province of the trial court to determine whether or not the occasion when slanderous words were spoken was privileged, yet whether words spoken on a privileged occasion were spoken with or without malice is a question for the jury, which cannot be taken from them where there is evidence tending to show malice in the utterance of the words.

2. Where words complained of as slanderous were privileged communications, the burden is upon plaintiff to prove actual malice, either by construction of the words, or by the attending facts or circumstances, or situation of the parties.¶ 2. See Libel and Slander, vol. 32, Cent Dig. § 150.

3. Strong and violent language, disproportional to an occasion otherwise privileged, may raise an inference of malice in the use of the language, and cause the loss of the privilege otherwise attaching to the communication.

4. The questions of good faith, belief in the truth of an alleged slanderous statement, and of the existence of actual malice, are for the jury.

5. Where the evidence on the material issues of the case is in conflict, it is for the jury todetermine the credibility of witnesses and the weight of their testimony.

6. In an action for slander alleged to have been committed in the discharge of an employe for theft, evidence held to make a question for the jury on the issue of the existence of malice in the making of statements which were otherwise privileged.

Error to Circuit Court of City of Richmond.

Action by Ellen Farley against Moses Thalhimer. There was a judgment for defendant, and plaintiff brings error. Reversed.

Sands & Sands, for plaintiff in error.

Meredith & Cocke, for defendant in error.

CARDWELL, J. Plaintiff in error, Ellen J. Farley, a young lady of 23 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 and Moses Thalhimer, in their dry goods store, conducted on Broad street, in the city of Richmond, 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 17, 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 5th 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 maliciously said to a Miss Chisholm, another employe, in the presence of a Miss Allen and others, as follows: "Miss Chisholm, is this your friend? if so, I suppose you will be glad to cut the acquaintance of a common thief, won't you? That is what she is. Do you know what I would like to do with you, anyway? I would like to take you downstairs, and have you stripped, and take a cowhide and strike you from your head to your heels." "There goes a thief, a thief." The second count alleges the same words as insulting and tending to a breach of the peace. The third count sets forth that the plaintiff in error on January 17, 1901, went to the store of Thalhimer Bros, to secure the balance of her wages, and that then and there, in the presence of Mrs. A. L. Pugh, Mrs. James Farley, and others, defendant in error used the following words: "You won't get it. It took you a long time to find out that I owed you anything, and it will take you a still longer one to collect it. You know how to make it Go ahead and make it. I see you are looking for trouble, and you can get it good, and plenty of it. I am fixed for you. I will let you down easy. I called you a thief before, and I call you one now, and a good one at that That girl is a thief. I caught her stealing in my store, and I can prove it. If I had gone over to her mother's house, I would have found out." The fourth count alleges the same words as insulting and tending to a breach of the peace.

Defendant in error, responding to the demand of plaintiff in error for a statement of his defenses, answered: "First, not guilty; 2nd, 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 Bros.; 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."

At the trial, after the evidence on both sides was offered, certain instructions were asked for by both plaintiff in error and defendant in error, in both sets of which the question whether the words alleged as slanderous were spoken maliciously or not was left for the determination of the jury; but the court rejected all of the instructions asked for, and gave in lieu thereof its own instruction, as follows:

"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 employes—they 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...