Kroger Grocery & Baking Co. v. Yount

• Decision Date: 07 September 1933
• Docket Number: No. 9252.,9252.
• Parties: KROGER GROCERY & BAKING CO. v. YOUNT.
• Court: U.S. Court of Appeals — Eighth Circuit

92 ALR 1166, 66 F.2d 700 (1933)

KROGER GROCERY & BAKING CO. v. YOUNT.

No. 9252.

Circuit Court of Appeals, Eighth Circuit.

July 26, 1933.

Rehearing Denied September 7, 1933.

Walter H. Saunders, of St. Louis, Mo. (A. L. Anderson and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellant.

R. L. Ward, of Caruthersville, Mo. (J. Henry Caruthers, of St. Louis, Mo., Ward & Reeves, of Caruthersville, Mo., and Curlee, Nortoni & Teasdale, of St. Louis, Mo., on the brief), for appellee.

Before STONE, KENYON, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case appellee recovered judgment against appellant in the sum of $5,000 as damages for slander. The parties will be referred to as they appeared below.

On February 16, 1929, and prior thereto, defendant was conducting a retail grocery business in St. Louis, Mo., under a system of self-service. Each store maintained by it was so arranged that after entering the store the customer came to a small lobby and then to an entrance turnstile, through which he passed, giving him access to the goods which defendant had exposed for sale, and from which the customer helped himself. He then came to another turnstile, through which he made his exit, and at which his purchases were checked over by a representative of defendant, the total price calculated, and the amount of the purchase price paid by the customer.

On the date in question plaintiff entered one of the stores of defendant in St. Louis, Mo., to purchase groceries. Prior to entering she had made various purchases of groceries at other stores, and she and her son, who accompanied her, were carrying these groceries; the son carrying all of the purchases except a package of Krispy Crackers, which plaintiff personally carried. These crackers were wrapped in oil paper just as they came from the factory. Defendant had in its store crackers of the same kind, packed in packages of exactly the same size and shape.

As the jury returned a verdict in favor of the plaintiff, it is necessary to consider the action of the court in denying defendant's motion for a directed verdict, interposed at the close of all the evidence. We shall consider the testimony produced by the plaintiff as true, giving her the advantage of such reasonable inferences as may arise therefrom.

Plaintiff and her son passed through the entering turnstile by the checker. Her son then went out, repassing the checker, going to the front of the store, where he left the packages which he had carried into the store on a bench. He then returned to his mother, and they selected some other articles, and the son then again stepped out into the front part of the store with the package of Krispy Crackers, which his mother had carried into the store and which had been purchased at Moll's store. She then got in line to pass the checker with the goods selected in defendant's store, but before she had reached the checker he called to some one in the back of the store who came forward, when there was a whispered conversation between the checker and the other employee whom he had called, and then this called employee went to the front of the store, where he kept watch of the son. Plaintiff paid the checker for the groceries she had selected in the store, and then went to her son and took the package of Krispy Crackers from him. At this time the checker, with the manager of the store, rushed up to plaintiff and accosted her, saying, "You pay for this package before you take it out of here." The party doing the talking was the manager, whose name was Tony Ranchetto. He took the package of crackers out of plaintiff's hands. She replied: "I beg your pardon. I did not buy this package here." Ranchetto said: "Read the sign, `No package goes out of here that is not wrapped.'" Plaintiff testified that she was excited and could not see the sign, and again said: "I did not buy the crackers here." Ranchetto then said: "What did that boy make the second trip behind the counter for? I never saw that boy in here before." Ranchetto again insisted that plaintiff pay for the crackers, and while she protested that she had gotten them at Moll's, Ranchetto said: "That is what a woman said in here yesterday and tried to get away with it." Plaintiff also testified that Ranchetto said she would have to call the manager on the telephone or pay for the crackers before she took them out. Plaintiff then said: "Well, what do you want me to pay you?" Ranchetto replied, "Twelve cents." This conversation was heard by other employees and other customers in the store. Plaintiff gave Ranchetto 12 cents, then changing her mind, asked for the return of her money, and left the crackers with Ranchetto.

Plaintiff then went to Moll's store, and some thirty minutes later returned with the clerk of that store who had sold her the crackers, and then another conversation occurred between plaintiff and Ranchetto. This conversation was admitted in evidence over the objection of defendant. It is not claimed that it was an independent slander, but that it was an admission of the manager that he had charged plaintiff with having stolen the crackers. The details of this conversation need not be here given, as they will be referred to later.

There was a sign conspicuously hung in the store, which read: "Leave your parcels with checker, for he is instructed to charge for each and every item passing the checking counter," but plaintiff testified that she had not observed this sign.

By its motion for a directed verdict at the close of all the evidence, and requests for certain instructions, which were refused, defendant has saved for review on this appeal the following questions: (1) The verdict is not sustained by substantial evidence because (a) the communication was conditionally or qualifiedly privileged, and (b) malice, actual or express, was neither pleaded nor proved by plaintiff; (2) the evidence of what was said between plaintiff and Ranchetto after plaintiff's return to the store was improperly admitted; (3) the verdict was so excessive in amount that the judgment should be reversed because of its excessiveness.

Plaintiff raises some other questions, but the foregoing are controlling.

It is important to consider whether or not the statements made by Ranchetto were, as claimed by defendant, qualifiedly privileged. If they were, then they are relieved of the presumption of malice, and to entitle plaintiff to recover it would be necessary to produce proof from which the jury might properly have found them to be malicious. A communication made in good faith by any person in the discharge of his duty, either legal or moral, is qualifiedly privileged and actionable only on proof of actual malice. Western Union Telegraph Co. v. Brown (C. C. A. 8) 294 F. 167, 169; Stroud v. Harris (C. C. A. 8) 5 F.(2d) 25; Wise v. Brotherhood of Locomotive Firemen, etc. (C. C. A. 8) 252 F. 961; Montgomery Ward & Co. v. Watson (C. C. A. 4) 55 F.(2d) 184, 187; New York & Porto Rico S. S. Co. v. Garcia (C. C. A. 1) 16 F.(2d) 734, 738; White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Finley v. Steele, 159 Mo. 299, 60 S. W. 108, 52 L. R. A. 852; Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S. W. 100, 26 L. R. A. (N. S.) 1080; Peak v. Taubman, 251 Mo. 390, 158 S. W. 656; State v. Reynolds, 276 Mo. 688, 209 S. W. 100; Garey v. Jackson, 197 Mo. App. 217, 193 S. W. 920; Butler v. Freyman, 216 Mo. App. 636, 260 S. W. 523, 526.

In Western Union Telegraph Co. v. Brown, supra, this court in an opinion by the late Judge Sanborn, in discussing the question of absolute and qualified privilege, said: "The communications are few that are thus absolutely privileged and the telegram under consideration is not of that class. It falls in that much larger class of libelous and slanderous communications to which a qualified privilege extends in cases where the communication is written, spoken, or published by the defendant in good faith in the discharge of some public or private duty, legal or moral, for the sole purpose of discharging that duty. In cases of this class, although the communication is libelous on its face, the time, occasion, and circumstances of its writing and publication may be such as to rebut and neutralize the existence of that malice presumed from its terms alone, and, if the defendant wrote or published it in good faith, it may be privileged."

In Montgomery Ward & Co. v. Watson, supra, the Circuit Court of Appeals of the Fourth Circuit considered a case in which the manager of the defendant company made an investigation for the purpose of ascertaining whether certain employees were taking goods from the store. In holding that communications made by the manager in the course of the investigation were privileged, the court said: "Here it was the duty of Niehaus as local manager of defendant's business to investigate any charge of dishonesty among its employees. He had received information tending to show that plaintiffs were guilty of dishonest conduct; and it was proper that he communicate to them the basis of his suspicions. The right to the enjoyment of the good reputation to which one is entitled should be jealously guarded by the courts, but the protection of this right does not require that an employer be unduly limited or circumscribed in making a bona fide investigation of alleged dishonesty or other misconduct among his employees. It is in the interest of good morals as well as of sound business that such investigations be conducted; and an employer should not be penalized for communications made to his employees supposed to have knowledge of such matters, where they are made in good faith and for the honest purpose of discovering the truth or of protecting the business."

In the case of Butler v. Freyman, supra, a customer of a ladies' hat store went into the store to purchase a hat, and while there trying on hats thought of an engagement she had made, and walked out of the store...