Pendrock v. F. W. Woolworth Company

• Decision Date: 08 July 1932
• Docket Number: 28283
• Citation: 243 N.W. 648,123 Neb. 477
• Parties: VERN PENDROCK, APPELLEE, v. F. W. WOOLWORTH COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

243 N.W. 648

123 Neb. 477

VERN PENDROCK, APPELLEE, v. F. W. WOOLWORTH COMPANY ET AL., APPELLANTS

No. 28283

Supreme Court of Nebraska

July 8, 1932

APPEAL from the district court for Douglas county: CHARLES E FOSTER, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. In an action for slander plaintiff to whom slanderous words were spoken may prove by direct or circumstantial evidence, or by both, that the defamatory utterances were heard and understood by a third person.

2. In testing on appeal the sufficiency of the evidence to sustain a verdict that defendants uttered and published a slander reasonable and proper testimony of plaintiff on those issues may be accepted as truthful.

3. Evidence outlined in opinion held sufficient to support a verdict that defendants spoke slanderous words to plaintiff and communicated them to a third person.

4. Refusal to give a requested instruction is not prejudicially erroneous where the directions therein were properly included in the instructions given.

Appeal from District Court, Douglas County; Foster, Judge.

Action by Vern Pendrock, a minor, by Anna Fletcher, her mother and next friend, against the F. W. Woolworth Company and another. Judgment for the plaintiff, and the defendants appeal.

Affirmed.

Crofoot, Fraser, Connolly & Stryker, for appellants.

Merrow & Murphy and John A. McKenzie, contra.

Heard before GOSS, C. J., ROSE, DEAN, EBERLY, DAY and PAINE, JJ., and RYAN, District Judge.

OPINION

ROSE, J.

This is an action to recover $ 10,000 in damages for slander. In Omaha plaintiff was a salesgirl in a store owned by defendant F. W. Woolworth Company and managed by defendant Arthur Davis. The petition alleged that Davis, February 25, 1930, acting for himself and his employer, wrongfully and maliciously intending to slander, malign and injure plaintiff, told her in presence of co-employees that six cents found in her shoe did not belong to her; that she had stolen it from them and was a common thief. In explaining the presence of the money in her shoe she stated in her petition that she was required to deposit daily with defendants her purse, street shoes and other personal belongings before entering upon her duties in the store; that she found in an aisle six cents belonging to a customer who had lost the money and that she put it in her shoe to keep it separate from money she was handling for defendants; that in the evening, having changed her store shoes for her street shoes before departing for home, defendants discovered the six cents in her store shoe, subsequently uttered the slander outlined and discharged her.

Defendants in their answer denied unadmitted allegations of the petition, specifically denied the charges that Davis accused plaintiff of wrongfully taking the money, of stealing it and of calling her a common thief, and pleaded that, pursuant to a request of Davis who found money in her shoe on the evening of February 24, 1930, she came to him in the basement of the store the next morning--February 25, 1930; that he then and there informed her she had broken a rule by concealing money in her apparel; that he would be obliged to discharge her; that the conversation between them was conducted in a moderate tone of voice, was not sufficient to, and did not, attract the attention or notice of any other person and that plaintiff left quietly and unnoticed. The facts pleaded as a defense were put in issue by a reply.

Upon a trial of the cause the jury rendered a verdict in favor of plaintiff for $ 2,000 and from a judgment thereon defendants appealed.

The principal ground upon which defendants rely for a reversal is the insufficiency of the evidence to sustain the judgment. They directed a formidable argument to the proposition that plaintiff did not make a case for damages and that consequently the trial court erred in overruling a motion by them for a nonsuit. The evidence on behalf of both sides shows that, before the store was opened to customers on the morning after the coins had been found in the shoe, plaintiff and Davis had a conversation in the basement of the store in regard to that incident. What then and there occurred was the material inquiry. The store was conducted on two floors--the first and the basement. Plaintiff had been employed as a clerk at a counter in the basement. She testified that, when near her counter on her way to work, Davis, who, with five or six other employees, was in the basement when she arrived, called to her from a distance of about 15 feet and said: "Pendrock, come over here;" that she did as directed and he said, "What is the matter with your shoe?" Her version of what followed, quoting from the record, reads thus:

"I didn't say anything. I looked down at my shoe and at him and he said, 'You stole some money from the store.' I said, 'What do you mean--that six cents I found?' He said, 'You...