Perdue v. Montgomery Ward & Co.

• Decision Date: 11 January 1937
• Docket Number: No. 18698.,18698.
• Court: Missouri Court of Appeals
• Parties: PERDUE v. MONTGOMERY WARD & CO.

100 S.W.2d 341

PERDUE v. MONTGOMERY WARD & CO.

No. 18698.

Kansas City Court of Appeals. Missouri.

January 11, 1937.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

"Not to be published in State Reports."

Action by Ida Mae Perdue against Montgomery Ward & Co. Judgment for plaintiff, and defendant appeals.

Judgment affirmed, and cause certified and transferred to the Supreme Court.

Wilson, Bundschu & Bailey, of Kansas City, for appellant.

Calvin, Vandeventer & Kimbrell, of Kansas City, for respondent.

CAMPBELL, Commissioner.

Plaintiff brought this suit to recover damages for an alleged slander, had a verdict and judgment for $1,000 actual damages and $500 punitive damages. The defendant has appealed.

The petition alleged that plaintiff was an extra clerk in the store of the defendant in Kansas City, Mo.; that on March 3, 1934, she, through mistake, took from said store a coat, the property of another employee of the defendant; that on March 7, 1934, she learned that she had taken said coat; that she thereupon informed Mrs. Brown, defendant's employee, of the fact, and that she would bring the coat to the store; that thereupon plaintiff returned the coat to the defendant and was directed by Mrs. Brown to take it to the office of Harry C. Johns, another of defendant's employees; that she went to the office of Johns, stated to him the facts concerning the taking of the coat, to which Johns replied: "It could not have been a mistake; you knew it was not your coat. Why did you take it? If it had been a mistake, you would have returned it immediately. You simply stole that coat, that's what you did." And that Johns falsely, wantonly, and maliciously spoke said words in the immediate presence and within the hearing of other persons. The answer denied generally and specifically the speaking of the words; alleges the relationship of plaintiff and defendant; that plaintiff removed a lady's coat from the place where employees' coats were usually stored during working hours; that said coat was the property of one Mrs. Craig, defendant's employee; that the loss of the coat was reported to Harry C. Johns, whose duty it was to investigate and handle such matters; that Johns undertook to find the missing coat. And "whether the same had been taken and removed through willful intention to convert the same to her own use, and unlawfully deprive the owner of the use thereof or whether the said coat had been removed through mistake or through negligence and carelessness, and the defendant alleges that whatever words were in fact uttered by the said Johns at the said time were uttered by him in good faith and without malice toward the plaintiff and while the said Johns was engaged in the investigation of the loss or removal of said coat; that the said Johns was engaged in and charged with the protection of the property of defendant and its employee, and that he had a bona fide duty or interest in the subject matter of said conversation and that whatever utterance was made by him was made in good faith in the performance of such duty and that the plaintiff had a corresponding interest with relation thereto and that by reason thereof the same constituted a privileged communication and the defendant is not liable to the plaintiff therefor."

The evidence shows that plaintiff was an extra clerk in defendant's store in Kansas City, Mo.; that about 9 o'clock p. m., on Saturday, March 3, 1934, she, through mistake took from defendant's store a coat belonging to defendant's employee, Mrs. Craig; that in a few minutes thereafter Mrs. Craig found that her coat was missing and reported the fact to the defendant's timekeeper, Mrs. Boone, and to the defendant's house detective, Harry C. Johns. The plaintiff on Tuesday night, March 6, 1934 learned that she had taken a coat which did not belong to her. On Wednesday morning, March 7, she told Mrs. Boone over the telephone that she had taken the coat of another by mistake and that she would bring the coat to the store. Thereupon plaintiff returned the coat to defendant's store and was directed by Mrs. Boone to take it to the office of Harry C. Johns. Plaintiff went to the office of Johns and said to him: "Good morning. Mr. Johns. Here is the coat. I am awfully sorry. It was a mistake." That thereupon Johns jumped at her, pointed his finger at her and spoke the words charged in the petition. That at the time said words were spoken a man stood so close to plaintiff that she could have touched him, and that other persons were within hearing. Following the conversation between plaintiff and Mrs. Boone over the telephone the latter reported to Johns that she had been informed that a young lady had taken the wrong coat and that she would bring it in the next day. Johns replied: "Well, when she brings it in refer her to me, because I have a coat in the office that is probably hers." Johns testified to the effect that when plaintiff came to the office that he asked her whether or not the coat he had in his office was her coat, and the plaintiff said it was. In the testimony of Johns is the following:

"Q. Why did you say `certainly not', when she (plaintiff) asked you if you thought she was trying to steal the coat? A. Because there was no thought in my mind, when the coat came back, that it was an intentional theft—there was no thought in my mind that it was—

"Q. (interrupting). Intentional? A. Yes, sir—when she returned the coat, because we didn't know who had it. We had no way of telling. * * *

"Q. Did you make the statement that she said you made? A. Absolutely not.

"Q. Did you charge her with theft? A. No, sir—certainly not.

"Q. Did you, in any manner insinuate to her that you felt that she had stolen the coat? A. No, sir—in no manner whatever."

At the close of plaintiff's evidence the defendant requested the court to direct verdict in its favor. The request was refused. The defendant again at the close of all of the evidence requested a like instruction. The request was refused. The defendant insists the refusal of each of said requests was error. If the last request were correctly ruled, then the first needs no attention. It is the defendant's theory that the defamatory words spoken by Johns were qualifiedly privileged; that the occasion was one of privilege; and that the words were spoken in good faith and without malice.

In the case of Mock v. American Ry. Exp. Co. (Mo.App.) 296 S.W. 855, 858, the defendant's agent, Long, was under duty to protect the defendant's shipment of merchandise. While performing that duty, Long said to the plaintiff in the hearing of another employee of the defendant, "You delivered this shipment and deliberately stole it." The defense was denial and privilege. In deciding the question of privilege the court said: "We fail to see how it can be...