Gilliland v. Feibleman's, Inc.

• Decision Date: 29 March 1926
• Docket Number: 27348
• Citation: 108 So. 112,161 La. 24
• Parties: GILLILAND v. FEIBLEMAN'S, Inc., et al
• Court: Louisiana Supreme Court

108 So. 112

161 La. 24

GILLILAND v. FEIBLEMAN'S, Inc., et al

No. 27348

Supreme Court of Louisiana

March 29, 1926

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.

Suit by Mrs. Etta B. Gilliland against Feibleman's, Incorporated and Harry Phillips, for an alleged slander. From a judgment in favor of plaintiff, defendants appealed. After transcript was filed, plaintiff died intestate, and on application Roy Bell, her sole heir, was substituted as plaintiff.

Reversed, and suit dismissed.

Blanchard Goldstein & Walker, of Shreveport, for appellants.

Long & Crow, of Shreveport, for appellee.

OPINION

BRUNOT, J.

This is a suit for damages for an alleged slander of plaintiff. The demand is for $ 30,000, the items being $ 15,000 for injury to petitioner's feelings and for mental anguish caused her, and $ 15,000 for the loss she has suffered because of her inability to secure employment as a result of the alleged slander. The defendants, Feibleman's, Incorporated, and Harry Phillips, filed a joint answer to the suit, in which the employment and discharge of the plaintiff were admitted, the alleged slander denied, and all other allegations of the petition, for lack of information, were neither admitted nor denied. On the day of trial the defendants asked leave to amend their answer for the purpose of correcting an alleged erroneous admission therein relating to plaintiff's discharge. The right to amend was denied, and upon the issues as joined the case was tried by a jury and a verdict was rendered in favor of the plaintiff and against the defendants, in solido, for $ 7,500, with legal interest thereon from the date thereof, and for costs. From this verdict and the judgment thereon the defendants suspensively appealed.

After the transcript was filed in this court the plaintiff died, intestate, leaving neither descendants nor ascendants, but a surviving brother, who was recognized and sent into possession of her estate as her sole heir. On the application of this heir, viz. Roy Bell, he has been substituted as party plaintiff herein in lieu of Mrs. Etta B. Gilliland, deceased.

Feibleman's, Incorporated, and its president, Harry Phillips, are the defendants in this case. The company operates a large department store in the city of Shreveport, and Mrs. Etta B. Gilliland, the original plaintiff, was a saleslady in its employ. The petition alleges that while plaintiff was thus employed she was called to the office of Mr. Phillips, the president of the company, who, while acting in his official capacity and within the scope of his authority, did, in the presence of a Mr. Murph and various other persons whose names are unknown to petitioner, ask petitioner, in an accusatory manner and in a loud and audible voice, this question:

"What did you do with that crepe (silk) you cut off and made no ticket for?"

It is also alleged that in response to this question plaintiff denied cutting off crepe or silk without making a ticket for it, and thereupon Mr. Phillips, in the presence and hearing of Mr. Strauss, Mr. Cohn, and other persons, said:

"You cut off three yards of crepe (silk) and made no ticket for it, and Miss Newman saw you do it."

The foregoing question and statement and the alleged manner in which they were addressed to plaintiff are the sole grounds upon which this suit is based. The petition alleges that the question asked her and the statement made were equivalent to branding petitioner as a thief, shoplifter, and embezzler, and that these utterances were made by Mr. Phillips both in his official capacity as president of the company and individually, with malice, without probable cause, and with the wicked and slanderous intention of bringing petitioner into disrepute, and reflecting upon her good name and character.

The answer simply denies the slander. There is no other issue presented.

It is properly and peculiarly the duty of the responsible or directing head of any business to question its employees regarding the property of the concern or the conduct of its affairs. Sometimes in the performance of this duty delicate situations arise which may result in grave injury to innocent persons if acted upon imprudently and without knowledge of the exact facts.

Plaintiff evidently assumes that this case presents such a situation. It is admitted that plaintiff was questioned substantially in the words recited in the petition. It is our opinion that the words are not slanderous per se. In fact, we do not think plaintiff contends that they are. Her contention is that they became so by reason of the accusatory acts and manner of the defendant Phillips at the time they were uttered. These acts and the alleged publication of the spoken words are questions of fact which must be determined from the evidence in the case.

Counsel for plaintiff cite the following cases in support of their contention that great weight should be given to the verdict of a jury. In Covington v. Roberson, 35 So. 586, 111 La. 326, the court held:

"In cases of slander the findings of the jury will not be disturbed unless clearly erroneous, improper, and not sustained by any correct view of the evidence."

In King v. Ballard, 10 La.Ann. 557, the principle contended for by counsel was not referred to in the opinion or syllabus, and the case does not apply.

In Mohrman v. Ohse, 17 La.Ann. 64, the court found that the plaintiff had conclusively proven his case.

In Sibley v. Lay, 11 So. 581...