Montgomery Ward & Co. v. Skinner

• Decision Date: 25 March 1946
• Docket Number: 36023.
• Citation: 200 Miss. 44,25 So.2d 572
• Court: Mississippi Supreme Court
• Parties: MONTGOMERY WARD & CO., Inc., et al. v. SKINNER.

25 So.2d 572

200 Miss. 44

MONTGOMERY WARD & CO., Inc., et al. v. SKINNER.

No. 36023.

Supreme Court of Mississippi

March 25, 1946

[Copyrighted Material Omitted]

R. H. & J. H. Thompson and Fulton Thompson, all of Jackson, and Charlotte E. Gauer, of Chicago, Ill., for appellants.

Barnett, Barnett, Jones & Stone and Butler & Snow, all of Jackson, for appellee.

McGEHEE Justice.

From a judgment for both actual and punitive damages in favor of the plaintiff, Mrs. Hattie E. Skinner, against the defendants Montgomery Ward and Company, Inc., and its assistant manager R.H. Burnie, in a suit for slander, the defendants have prosecuted this appeal.

The first question presented is whether or not the defendants were entitled to a directed verdict in their favor. And it is well-settled that every fact which the evidence establishes directly or by reasonable inference must be considered as proved against a party asking for a peremptory instruction. Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, and the numerous decisions of this Court therein cited.

On December 5, 1944, there was found underneath a plaque at the cash register, in the toy department of the defendant corporation's store in Jackson, a twenty and a ten dollar bill in currency, together with an eight dollar check of a customer, which some employee in said department had evidently removed from the cash register for the purpose of getting money of smaller denominations with which to make change and had carelessly or negligently failed to replace. At that time, the plaintiff and Mrs. Jane Blakely, Mrs. Ralph Higgins, R. E. Catchings and Mrs. Mattie Darby were the sales clerks in the toy department under the supervision of the defendant Burnie. The money was found by the said Mrs. Jane Blakely, who promptly reported such fact to Catchings, and he reported the incident to the defendant Burnie, who thereupon in turn reported it to the general manager, R. W. Prenger. After some discussion of the matter between the latter two, the general manager instructed the defendant Burnie to ascertain who was to blame for misplacing the money, and to discharge 'the ones' that he considered guilty. This instruction was given him after he and the general manager had decided to exonerate the said R. E. Catchings and Mrs. Darby from blame on the untenable ground so far as the plaintiff was concerned, that those two knew better how to manipulate the cash register and could have replaced the money therein, whereas the said Burnie admitted as a witness at the trial that 'I would say that Mrs. Skinner (plaintiff) knew as well how to ring the cash register as Mrs. Darby and Mr. Catchings,' but that 'I would also say that Mrs. Higgins and Mrs. Blakely did not know how to ring it as well.' Then too the limitation of the blame to the three accused wholly ignored the obvious fact that either of the five could have foregotten to replace the money in the cash register regardless of how well they knew how to do so.

The conclusion was reached by the general manager and the defendant Burnie that the blame lay between the plaintiff and the said Mrs. Jane Blakely, although she had reported the finding of the money as aforesaid, and Mrs. Ralph Higgins. And, while it does not appear that either of them had previously been careless in that regard, the defendant Burnie, instead of calling these three ladies to his office in the toy department at the closing time that afternoon, or during the next morning on a proper occasion, and discussing the matter with them either separately or collectively, out of the presence and hearing of third persons, and advising them that he had concluded that one of the three was guilty of the act of carelessness involved and requesting that whoever it was must not let it occur again, saw fit to wait until some time during the next afternoon and then after first discussing the matter separately with each of them in the presence and hearing of customers in the toy department, when each of them thereupon denied knowing anything about how the money came to be placed underneath the plaque, and although he had no evidence whatever as to the guilt of either of them individually, he finally addressed them all collectively at or near the cash register, at a time when at least two of them were waiting on customers, and uttered the following defamatory statements, to-wit: 'If one of you three don't tell me where you got it, I will fire the three of you. All damned three of you are going out of here this afternoon without a recommendation and with a blot on your record and character. You can give me as a reference if you like, but when the parties you want to clerk for or want to hire to calls me, I will tell them they are hiring you at their own risk, that while working here you trifled with Montgomery Ward's money. You are one of three who trifled with the money. You all deny it, but one of you did it. You laid it and hid it there with ill intentions and you are fired without a recommendation.'

It is undisputed that the three ladies in question testified that the foregoing statements were made. In fact, the appellants concede in their brief that 'the testimony of the three ladies, * * * was substantially to the same effect, as follows:', and then sets forth the identical language quoted in the next preceding paragraph of this opinion, and which is the same in every respect as the language declared upon in the declaration herein.

It is true that the plaintiff is limited in her right of recovery to the charge made in the declaration, and which is admitted to have been proved insofar as the testimony on behalf of the plaintiff is concerned. However, it was competent for the plaintiff to prove such additional facts and circumstances as would throw light on the question as to whether or not the third persons present would reasonably understand that the speaker intended to reflect upon her.

It would unduly prolong this opinion to set forth herein all of the testimony contained in the record bearing upon whether or not the plaintiff was individually slandered by what was said. We shall therefore quote such of the testimony on behalf of the plaintiff, and in its proper setting, which we deem to have a direct bearing on that issue, and will concede the extent to which it was denied by the defendants, but keeping in mind that we are discussing the question as to whether or not the proof on behalf of the plaintiff is sufficient to withstand the motion of the defendants for a directed verdict in their favor.

On the occasion complained of, the proof on behalf of the plaintiff disclosed that there were about eight or ten customers present and doing some shopping, and that some of them 'stopped and listened, came up close to where we were'; that there were 'probably four or five of them' who listened to what the defendant Burnie said. However, it was denied by the defendant Burnie and Mr. Catchings that there were any customers present on this December afternoon in the toy department except a gentleman who was being shown a baby buggy by Mr. Catchings.

That the defendant Burnie was speaking in a loud voice on the occasion complained of, was very angry, and that the accusation was made to the plaintiff both at the time when she was being separately addressed and when the three ladies were being addressed collectively, the plaintiff having testified that 'Mr. Burnie shook his finger in my face. He was white in the face when he was talking to me. That is why I knew he was angry.' And the plaintiff was corroborated by Mrs. Blakely when the following question was asked and answered: 'Well, who, if anyone, was he looking at or pointing at when he said 'You hid the money there with ill intent and you are trifling with Montgomery Ward's money', who was he looking at and pointing at at that time?' Answer: 'Mrs. Skinner.' This was also denied by the defendant Burnie, and it was a question for the jury to decide the issue thus raised.

No proof was offered by the defendants to show that the plaintiff or either of the two ladies were responsible for misplacing the money, other than the surmise given by the defendant Burnie as to why he concluded that it lay between the three of them. And the jury could conclude from the evidence that, even though Mr. Catchings and Mrs. Darby may have been more familiar with the operation of the cash register than the three persons to whom the slanderous utterances were addressed, nevertheless either of them, although previously exonerated by the defendant Burnie and the general manager, could have carelessly failed to replace the money in the cash register, even though they may have known how to do so, if they had removed the same for the purpose of making change.

All three of the ladies in question were discharged at the end of that day as threatened, and all three of them went out of the store at closing time with a 'blot on their record and character', as the defendant Burnie had predicted.

In the meantime, the plaintiff again had assured the said defendant Burnie that she was not guilty and appealed to him for a recommendation in order that she might thereafter obtain employment elsewhere, and he admits in his testimony during this conversation with the plaintiff that he stated to her, among other things, that 'we do not hold you alone responsible for it;' and she testified that he further said, when talking to her individually in the toy department of the store, that 'when you start trifling with Montgomery Ward's money you get my dander up.' He also denied having made this statement, and there was presented to the jury for decision the issue in regard thereto.

And the proof on behalf of the plaintiff further discloses that during the afternoon she appealed...