Hall v. Rice
| Decision Date | 16 January 1929 |
| Docket Number | 26161 |
| Citation | 223 N.W. 4,117 Neb. 813 |
| Parties | JUDITH HALL, APPELLEE, v. LAWRENCE R. RICE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
In an action for false imprisonment, malice is not a material element.
In an action for false imprisonment, an instruction that malice is immaterial, except in so far as, in your opinion, it may affect the extent of her damages, is erroneous, as punitive and exemplary damages are not allowed in this state, unless in cases provided for by express statute, of which false imprisonment is not one. Johnson v. Bouton, 35 Neb 898, 53 N.W. 995, syllabus 3, overruled.
Twenty clerks were employed in a drug store having several departments and a number of cash registers upon which sales were rung up by the clerks indiscriminately. One of the clerks was suspected of taking money from one of the registers, and making false registration of sales, and signed a written confession to that effect. Held, in an action for slander by the delinquent against the manager and employer, that a communication by the former to the other clerks of the facts of such confession was qualifiedly privileged.
Where the slanderous words, although libelous per se, were uttered under circumstances of qualified privilege, the burden is upon the plaintiff to prove by a preponderance of the evidence that they were uttered with express malice.
Where the slanderous words are libelous per se, malice is presumed, and the presumption furnishes sufficient evidence on that point prima facie. It is then incumbent upon defendant to produce evidence sufficient to balance or overcome the presumption; but the burden of proving malice does not shift; it remains with the plaintiff. So much of the fourth syllabus and opinion in Estelle v. Daily News Publishing Co., 99 Neb. 397, 156 N.W. 645, as apparently conflicts with the rule as above stated, is overruled.
In an action for slander presenting a question of qualified privilege, an instruction that, if the jury found that plaintiff did not take any money belonging to defendant company, defendant's manager would not be justified in stating to the other employees that plaintiff had taken the money and had confessed, is prejudicially erroneous, as it ignores the defense of privilege pleaded in the answer.
It is the duty of the trial judge to instruct the jury correctly upon the law as applied to the issues presented by the pleadings, if supported by the evidence, whether requested or not.
Where objection is made to improper argument of counsel in opening and a ruling had thereon, it is not necessary to make repeated objections on the same point to arguments of other counsel in the closing, in order to review such conduct.
Conduct of counsel in argument, set forth in opinion, held ground for reversal.
Appeal from District Court, Douglas County; Wakeley, Judge.
Action by Judith Hall against Lawrence R. Rice and another. Judgment for plaintiff, and defendants appeal. Reversed.
Montgomery, Hall, Young & Johnsen, for appellants.
George Evens and Thomsen, Mossman & Standeven, contra.
Heard before GOSS, C. J., ROSE, THOMPSON and EBERLY, JJ., and REDICK and STALMASTER, District Judges.
The plaintiff brings this action against the defendants, Lawrence R. Rice and Louis K. Liggett Company, a corporation, and sets forth in her petition two causes of action, one for false imprisonment and one for slander. Plaintiff was in the employment of the defendant company as manager of the candy department, and defendant Rice was general manager of the drug store.
For her first cause of action, plaintiff alleges that she entered the employ of the defendant company about June 15, 1926, and continued such employment until November 12 following, when she was discharged; that on November 12 she was called from the store to the office and accused of stealing money, that she was forcibly detained in the office, and by threats and intimidation compelled to sign a confession to the effect that she had made a sale in the amount of $ 2.51 and rung up on the register only 51 cents, had taken $ 1 from the register for her own purposes, and had, during her employment, taken money of the company in different amounts averaging about $ 3 a day, a total of $ 350; that defendants had reported such defalcation to the insurance company who had plaintiff's fidelity bond, in consequence of which she had been blacklisted and unable to obtain work, and alleged damages of $ 10,000.
For her second cause of action, she alleged that the defendants, wrongfully and wilfully and with the purpose of injuring plaintiff in her character and standing in the community, stated to the other clerks in the store that plaintiff had embezzled money belonging to defendant company and had signed a written confession to that effect; that defendant Rice uttered said slander with full knowledge that the same was untrue and that the confession had been secured by threats and coercion, and asks damages of $ 15,000.
In separate answers, the defendants answered the first cause of action and denied each allegation thereof except the employment of plaintiff and the forwarding of notice of the defalcation to the bonding company. Defendants further allege that on November 12, 1926, plaintiff was observed to make a cash registration of only 51 cents on a $ 2.51 sale in her department, and upon being asked for an explanation admitted the facts set forth in the confession, and made the same voluntarily without any coercion on the part of any one; that plaintiff actually made misappropriations of money, as admitted by her, and that notice to the bonding company was an act which defendant had a legal right to do.
In answer to the second cause of action, defendants denied each and every allegation not specifically admitted, alleged the facts with reference to the register, misappropriation and confession as stated in the answer to the first cause of action, and after the signing of the confession, defendant informed plaintiff's coworkers and fellow employees thereof, and that such communication was made in good faith, in the interest of the integrity of the business and of plaintiff's fellow employees, without malice, for justifiable purposes and with an actual belief in its truth; and that the making of such communication was privileged under all the circumstances.
In reply plaintiff filed a general denial.
The cause was tried and submitted to a jury, which returned a verdict for the plaintiff in the sum of $ 5,000. Motions for new trial were overruled, judgment rendered on the verdict, and defendants appeal.
Defendants file eight assignments of error as ground for reversal, three of which we will consider.
1. Exception is taken to that portion of instruction No. 12 on the measure of damages upon the cause of action for false imprisonment, to the effect that the jury should take into consideration The point made is that by this instruction the jury were permitted to assess punitive damages against the defendants if they found that they acted maliciously. The instruction is erroneous. Malice, as stated, was no part of the cause of action for false imprisonment, and to authorize that element to enter into the assessment of the damages had a tendency to permit the jury to assess the same at a sum in excess of just compensation. It is true that in closing the instruction the court told the jury that they could not allow exemplary or punitive damages, but this was inconsistent with the previous statement, and we are not able to say which statement was adopted by the jury. In 25 C. J. 545, it is said: The latter part of the text quoted has no application in this state because punitive or exemplary damages are not allowed, unless by express statute in certain cases, in which false imprisonment is not included.
The plaintiff cites on this point Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995, in which syllabus 3 is as follows: "The question of malice in an action for false imprisonment is immaterial, except so far as it affects the measure of damages." The case in question is not controlling for two reasons: (1) The question arose from the refusal of the trial court to instruct the jury that the plaintiff must prove that the original prosecution was without probable cause and was malicious, and the court approved the refusal, stating: "False imprisonment is the unlawful detention of the injured party"--and then added the matter quoted in the syllabus above, citing Comer v. Knowles, 17 Kan. 436. This last expression was not necessary to the determination of the question presented to the court. (2) Under the laws of Kansas at the time of the decision cited, punitive and exemplary damages were allowed.
2. Exception is taken to instructions Nos. 13 and 15, given by the court on its own motion, as follows:
To continue reading
Request your trial