Allen v. Edward Light Company, a Corp.

• Decision Date: 23 May 1921
• Citation: 233 S.W. 953,209 Mo.App. 165
• Parties: JOHN H. ALLEN, Respondent, v. EDWARD LIGHT COMPANY, a Corporation, and EDWARD C. LEFKOVITS, Appellants
• Court: Kansas Court of Appeals

233 S.W. 953

209 Mo.App. 165

JOHN H. ALLEN, Respondent, v. EDWARD LIGHT COMPANY, a Corporation, and EDWARD C. LEFKOVITS, Appellants

Court of Appeals of Missouri, Kansas City

May 23, 1921

Appeal from the Circuit Court of Jackson County.--Hon. O. A. Lucas Judge.

AFFIRMED.

Judgment affirmed.

J. C Reiger and T. L. Carnes for respondent.

Samuel Eppstein for appellant.

OPINION

BLAND, J.

This is an action for slander. There was a verdict and judgment for plaintiff in the sum of $ 1000 compensatory and $ 3000 punitive damages and defendants have appealed.

The facts show that defendant corporation conducted in Kansas City, Missouri, a wholesale and retail business in gas and electrical fixtures, and the like; that defendant Lefkovits was the president, manager and owner of the defendant corporation; that on March 14, 1919, plaintiff was employed by the defendant corporation and was in charge of the sales department. It was his duty "to look after the business in general." He had power to make small donations to purchasers. On said day he sold a bill of goods to the wife of a minister for use in a church at Mt. Washington, a suburb of Kansas City. The amount of the sale was $ 12.95. When he gave her a receipt for the money she remarked, "I wish I had bought a chain for the chain hanger. " Plaintiff then told her he would donate that. She did not take the goods with her as they were to be sent. Plaintiff went to the foot of the stairs and called one Clark, who was in charge of the shop room in the basement, showed him the order and told him when the order went out to put in a chain for the chain hanger and Clark said, "If you are donating the chain why don't you make it up right and donate it (the chain hanger)?" and plaintiff replied, "All right, go ahead." The value of the things donated was $ 1.10. Plaintiff's statement that he would donate the chain was made in the presence of another employee by the name of Jacoby. Plaintiff testified that he thought defendant Lefkovits was in the room downstairs at the time.

Lefkovits was told before the goods went out that "there is more merchandise going out than paid for." Upon hearing this he decided to "test the matter out." So he went to the Harb Detective Agency and employed a detective named Milton to go to the minister's house and investigate he matter and see "whether there was more merchandise delivered than bought and paid for and report to me." Milton, together with Jacoby, went out to the minister's house and investigated the matter and Milton reported to Lefkovits the afternoon of March 15th. Late that afternoon Milton and another detective by the name of Valleau, who was likewise an employee of the Harb Detective Agency, came to defendant's place of business and went into a small room in the rear. Lefkovits then called plaintiff and took him to the room where the detectives were and Lefkovits shut the door and stood in front of it and introduced plaintiff to Milton and and Valleau. Milton pulled his coat back and said, "I am a detective, How much of this man's goods have you stolen?" Plaintiff replied that he had not "stolen a penny's worth." Milton then said to plaintiff, "You have been stealing--you have been stealing goods," and said he had papers in his pocket to show that he could have plaintiff put in the penitentiary inside of a week. He then pulled the papers from his pocket and said to plaintiff, "How about the job at Mt. Washington that you sold?" plaintiff replied explaining that he made a donation and had authority to do so and turned to Lefkovits and asked him if he had not such authority and Lefkovits replied, "No, you stole that chain hanger and you sold two batteries for one and turned in money for one." "You stole that chain hanger, and you also sold two batteries for one." It appeared that Lefkovits' daughter, who had been acting as cashier, had told Lefkovits that plaintiff had sold two batteries and had turned in money for only one. Plaintiff replied to the accusation in regard to the batteries that he had not sold two batteries and accounted for but one, but that a woman brought in a battery and bought a new one and that she wanted to take the old one with her and he wrapped up the old one with the new. Lefkovits contended that plaintiff had no right to make a donation except with Lefkovits' consent.

Lefkovits then called Milton outside of the room where they remained for two or three minutes and came back and Milton again accused plaintiff of stealing the chain hanger and Milton became angry and called plaintiff a "son-of-a-bitch and a thief." Lefkovits and Milton then went outside again and shortly returned when Milton cursed plaintiff "for a minute" and plaintiff said to him "Treat me as a gentleman" to which Milton said, "Gentleman, hell; you are a thief." Milton then jumped up and pulled a revolver and handcuffs from his pocket and said, "You are under arrest, swear out the warrant, E. C., (meaning Lefkovits) and we'll take him now." Milton and Lefkovits again went out of the room and shortly returned and Lefkovits and Milton wrote the following--

"K. C. Mo., Mch. 15-19.

"This is to certify that I, J. H. Allen, now employed by the Edward Light Co., 1317 Grand Ave. hereby agrees to reimburse the Co. for one chain hanger the value of $ 1.10 which I gave to the wife of a Pastor. I did not own this mdse. and made no accounting of it. I am also willing to reimburse the Co. for the expense of an investigation which was made by them on acct. of this action. The amt. of this expense being $ 8.12."

They asked plaintiff to sign the writing, Lefkovits saying, "You sign it and we will drop it." Plaintiff did not want to sign the statement and demurred but on account of a threat to take him to jail, and it being Saturday and fearing that he might have to stay in jail until Monday, and never having been arrested before, he finally signed the statement to prevent his arrest, although he stated at the time that it was not right for him to sign it, that it did not state the facts. The amount mentioned in the statement was afterwards taken from plaintiff's pay check. After plaintiff signed the statement Lefkovits said to plaintiff, "Let's forget it, you work on as if nothing had happened. I wont say anything to anybody and you don't either." Plaintiff replied, "I can't forget it." Lefkovits then left the room. Plaintiff remained in the room a few minutes and then went out to see a friend about the matter. He voluntarily quit his employment the Thursday or Friday following this interview, which occurred on Saturday.

The petition is lengthy and it would serve no useful purpose to copy it in this opinion; suffice it to say, that it alleges the facts about as we have stated them. It charges that Lefkovits was president, treasurer and general manager of the corporation and owner of its capital stock; that Lefkovits and the corporation employed Milton and Valleau to come to the place of business of defendants and "there confront and accuse this plaintiff of stealing goods from the defendants," and that Milton in the pursuance of his employment by the defendants "in the presence and hearing of Valleau and said Lefkovits, falsely, wantonly and maliciously spoke of and concerning plaintiff the following false, malicious and defamatory words, to-wit: 'How much of this man's goods have you stolen'?" and "falsely, wantonly and maliciously spoke of and concerning the plaintiff the following false, malicious and defamatory words, to-wit: 'We have papers here to show that you have been stealing stuff,' and, continuing, maliciously, falsely and wantonly uttered the following false, malicious and defamatory words, to-wit:' Now, Mr. Allen, are you sure you have not been stealing this man's goods? Do you swear to that?'" The petition alleges that Lefkovits for himself and for the corporation "in the presence of said Milton and said Valleau, falsely, maliciously and wantonly uttered of and concerning the plaintiff the following false, malicious and defamatory words, to-wit: 'No, you have been stealing my goods. You stole that chain hanger.' And, continuing, said Lefkovits then and there and in the presence of said Milton and said Valleau, falsely, maliciously and wantonly uttered of and concerning this plaintiff the following false, malicious and defamatory words, to-wit: 'You sold two batteries for one, and stole one.'" The petition then alleges that Milton acting within the scope of his employment by the defendants and in the presence of Valleau and Lefkovits, "falsely, wantonly and maliciously uttered of and concerning the plaintiff the following false, malicious and defamatory words, to-wit: 'You are a son of a bitch and a thief'" and "falsely, maliciously and wantonly uttered, in the presence of said Lefkovits and said Valleau, the following false, malicious and defamatory words of and concerning plaintiff, to-wit: 'Gentleman, hell, you are thief.'"

It is insisted by appellants that their objection to the introduction of any evidence being offered under the petition in the case should have been sustained for the reason that the petition does not state facts sufficient to constitute a cause of action; that Milton not being made a party defendant his statements are not slanderous and binding on the defendants. The petition alleges that Milton was employed by both defendants to "confront and accuse this plaintiff of stealing goods from the defendants," and that Milton in uttering the slanderous words was acting for the defendants within the scope of his employment. It also alleges facts showing that defendants ratified the acts of Milton in slandering plaintiff. We think there is no question but that the petition states a cause of action against the defendants...