Eddy v. Cunningham

• Decision Date: 20 August 1912
• Parties: EDDY v. CUNNINGHAM.
• Court: Washington Supreme Court

125 P. 961

69 Wash. 544

EDDY v. CUNNINGHAM.

Supreme Court of Washington

August 20, 1912

Department 1. Appeal from Superior Court, Franklin County; O. R Holcomb, Judge.

Action by A. F. Eddy against Charles Cunningham. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. B. Noland, of Pasco, for appellant.

Moulton & Henderson, of Kennewick, for respondent.

CHADWICK J.

Plaintiff brought this action to recover damages for an alleged slander. He had been an employé of the defendant at a hotel in the city of Pasco. A part of the time he acted as auditor and clerk. His position may be described as that of a general factotum for his employer. He enjoyed his full trust and confidence, and seems to have managed the business without suggestion. Finally, defendant, being apprised of certain acts of the plaintiff, discharged him. This was done in the presence of others, and defendant is alleged to have used words that are actionable; that is, 'thief' and 'pimp.' We think no further statement of the case is necessary. Defendant made general denial, and pleaded mitigation, justification, and the truth in the words spoken. From a judgment in favor of plaintiff, defendant has appealed.

It is first contended that the word 'thief' should have been withdrawn from the consideration of the jury, for the reason that the plaintiff admitted a state of facts which made him guilty of the crime of embezzlement. This the court refused to do. and upon the particular word instructed as follows: 'To prove that plaintiff is a thief, it is not enough for the defendant to show that plaintiff took money that was the property of defendant, but he must go further and show that plaintiff took defendant's money fraudulently and with a criminal intent to deprive the defendant of it. This must be established by a preponderance of the evidence. If, on the other hand, the plaintiff took the defendant's money under a good-faith claim, made at the time thereof, that he was entitled to or had a right to take it, and did so openly and avowedly, and if you so find, then the claim of the defendant that the plaintiff was in truth a thief has failed.' The instruction is criticised because it leaves to the jury the determination of the question whether respondent took appellant's money under a good-faith claim made at the time, and that he was entitled to take it and pay an alleged debt, ignoring the only defense that would avail respondent that is, a good-faith claim of title to the property or money which was converted by him. This would ordinarily be so; for no man should be heard to plead the right to pay himself a debt out of the money of another, knowing that he has no title thereto. Good faith, under such circumstances, demands a presentment of the claim; but instructions cannot be measured as abstract statements. Their pertinence depends upon the facts of the particular case, and the abstract must be tempered to meet the real issue. The testimony shows that respondent had full charge of appellant's business receiving all moneys and paying all demands, including his own salary. We think, therefore, in respect to the question raised, that the instruction was drawn with a proper appreciation of the distinguishing features of the case.

Nor do we think that appellant's motions to take the consideration of the word 'thief' away from the jury should have been granted. Whether the use of the word was justified, or whether appellant showed, by a preponderance of the evidence, a state of facts warranting an inference of guilt, was for the jury, although we have no hesitation in saying that, were we free to pass upon the question as one of law, the use of the word was amply justified by reference to the attending circumstances. The real question is not whether respondent was guilty of larceny in the sense that a verdict of guilty would be sustained; for appellant does not have to prove respondent guilty beyond a reasonable doubt in order to justify his words. An important issue raised by the pleadings and the evidence is whether considering the relations of the parties and all attending facts and circumstances, the words were used in a defamatory sense as charging a crime, or merely as words of abuse, justified by the circumstances and the former relations of the...