PLEASANTS, C. J.
This is a suit to recover damages for slander brought by defendant in error against the plaintiff in error.
The petition alleges, in substance:
"That plaintiff was in the employ of defendant, as a clerk in his mercantile business, in the city of Houston, continuously from December 3, 1906, to August 21, 1921, and that from and after the year 1909 she was the confidential clerk of defendant and had access to the cash register, and during defendant's absence, in the years from 1912 to 1919, she had charge and management of the business, collected and disbursed the moneys received in the business, collected defendant's rents, and had authority to draw checks against defendant's bank account; that during all of these years she faithfully and honestly served defendant and was ever watchful of his interest, as defendant well knew.
"That this plaintiff has at all times borne a good name and reputation for morality and honesty and integrity in this community, and was well and favorably known among her friends as well as among the patrons and customers of this defendant.
"That more particularly on or about the 21st day of August, 1920, while this defendant was busily engaged in waiting on one of defendant's customers, a lady, whose name is unknown to plaintiff, in his store, this defendant after looking into his cash register, in the presence and hearing of plaintiff and of other clerks, to wit, Henry Finkelman, Miss Emma Fowler, and during part of this time ____ Bidwell, as well as numerous customers, men and women, whose names are unknown, who were in said store at said time, unmindful of plaintiff's good name and reputation, and maliciously intending to degrade and humiliate plaintiff and deprive her of her good name and reputation, called out in a loud, boisterous, and ugly voice and in a threatening manner to this plaintiff: `Look here, Anna! There is $30 missing out of the register; you took it.' That this plaintiff was much surprised and astounded by this statement and said to defendant: `I don't know anything about it; you are mistaken.' The defendant then again in a loud, boisterous, and ugly voice and threatening manner called out to this plaintiff, in the presence of the other clerks and customers in said store: `You certainly did take it. Who else took it, if you didn't take it, because no one else has access to the cash register, but you?' This plaintiff then said to defendant, `Surely Mr. Koehler, you do not think I took your money,' and offered to come to the register and check up the cash, whereupon defendant cried out in a loud voice and threatening manner to her, in the presence of the other clerks heretofore named and numerous customers, men and women whose names are unknown to plaintiff, in said store: `Keep your hands right out of this cash register. Get your hat on and go home. I don't want you around here any more.'
"That plaintiff further represents and charges that the defendant, by the use of said words as hereinbefore set out, undertook to and did charge this plaintiff with theft and being a thief and with having stolen from him the sum of $30; that all of said statements were wholly false and untrue and were willfully and maliciously made by the defendant with the full knowledge that they were untrue at the time they were made. This plaintiff represents that she did not take $30 from the defendant, or his cash register, and did not take from him any sum of money whatever, and she charges that said statements were falsely and maliciously made by the defendant with the intent to defame and disgrace her and to destroy her good name and reputation, and, as plaintiff further verily believes, as an excuse to discharge her because he thought her health was failing, and which had become impaired in the service of this defendant.
"That all of said false charges and accusations so made by defendant were made in a loud, angry voice and a threatening manner, and in the presence of other clerks heretofore named and customers, men and women, whose names are unknown to plaintiff, in said store, and were calculated to and did embarrass and humiliate and distress this plaintiff and tended to and did degrade and disgrace her and damage her good name and reputation in the eyes and opinion of her coemployees and the customers in said store, as well as with the public generally. That said false charges and accusations have further seriously and permanently affected her health and have destroyed her chances of earning a livelihood."
It is then alleged that the false and slanderous charge so maliciously made against her by the defendant caused her great humiliation and shame, and made her suffer great physical and mental pain and anguish, and so impaired her health as to greatly reduce her earning capacity. Plaintiff claimed actual damages in the sum of $10,000, and $20,000 as exemplary damages. The substance of defendant's answer is stated in his brief as follows:
"Plaintiff in error by first amended answer addressed general demurrer and numerous special exceptions to the petition, general denial, and specially pleaded, in brief substance, that during the latter years of her employment in his store defendant in error was forelady in charge of his business, having access to his cash register, authority to and did receive money, make change and pay out money, with the duty to see that the cash in the register was properly kept and accurately accounted for and to see that all of the other employees properly performed their
duties; she being in authority over them. He further alleged that on various occasions before her employment was severed the cash in the register would be out of balance and sometimes short or missing, to which he had frequently called her attention to advise her of such conditions and to stimulate more careful and watchful attention to his business on her part.
"He averred concerning the occurrence that is the basis of her suit that during the absence for lunch of the only other of his employees having access to the register, and while defendant was on duty making change and receiving money, he had occasion to go into the cash register and noted the amount, kind, and denominations of currency therein, and a few moments thereafter was called to the front of the store on business, and upon his return to the register only a few minutes later he discovered that the currency was differently arranged in the drawer and some $10 bills missing therefrom (thought by him at first glance to be three tens, but immediately finding that only two tens were missing). He thereupon called her attention to the missing money, according to his allegations, in an ordinary tone with the statement that it looked to him as though the same old thing had happened as before; that she was the only one then in the house that had any right to go into the cash register; that he had left her standing by the register when he went to the front of the store, and it seemed to him she should know who took the money; that it looked to him like she was not properly looking after his business, and if she could not do better, he had no further need of her services and might as well give her her salary, which he did, and later in the afternoon she left his store and employ.
"He alleged that the money was missing from the register drawer and that he asked her, as was his right, for an explanation of what had become of the money; she being at the time the only one in charge of the register. He specifically denied that he called her a thief or accused her of stealing, or acted with malice or intent to injure her, or took any improper attitude in the premises towards her, and that all of his statements, questions, and conduct on such occasion were in accordance with his right and duty in properly managing his business and were privileged matters, and he specifically denied that she had been injured thereby. He further alleged that he had missed money from his said register on previous occasions, and, as conditions had become very unbusinesslike in this respect, he naturally looked to her, his forelady, handling his cash and having authority over all of his other employees, for explanation. He averred that in good faith and with a sincere, honest purpose, and without malice, he was the more moved to know of her where the money was going as, without apparent income to justify such large outlays of money, and while holding such position and authority in his employ, she had purchased an Oldsmobile automobile for about $2,100, paying cash for same, and had bought a building lot in Montrose addition to the city of Houston, paying about $3,750 cash for same, and maintained the expense of the upkeep of such automobile and in a manner lived far beyond the apparent financial resources of herself and her family. While missing money and taking note of these circumstances, he avers he felt it incumbent upon himself, as any prudent employer in the proper management of his business in good faith and without malice would have done, to ask her for an explanation of the missing money, and when none was forthcoming to sever her employment with him, as was done, and that he is in no manner liable to her."
The cause was submitted to a jury in the court below upon special issues. In response to the questions submitted, the jury found that the defendant used the language to plaintiff as set forth in her petition, and that the...
