Townsley v. Yentsch

• Decision Date: 20 March 1911
• Citation: 135 S.W. 882
• Parties: TOWNSLEY v. YENTSCH.
• Court: Arkansas Supreme Court

Page 882

135 S.W. 882

TOWNSLEY v. YENTSCH.

Supreme Court of Arkansas.

March 20, 1911.

Appeal from Circuit Court, Pulaski County; Robt. J. Lea, Judge.

Action by Mrs. Ella Yentsch against C. G. Townsley. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Geo. W. Murphy and Morris M. Cohn, for appellant. Gus Fulk and Bradshaw, Rhoton & Helm, for appellee.

McCULLOCH, C. J.

The plaintiff, Mrs. Ella Yentsch, sued defendants C. G. Townsley and his son, F. P. Townsley, for damages on account of slanderous words alleged to have been uttered to and about plaintiff in the presence of others by Mrs. Townsley, the wife and mother of defendants. The alleged slanderous words consisted of an accusation of having stolen a basket. The jury returned a verdict in favor of the plaintiff, assessing actual damages in the sum of $1,000 (no punitive damages being assessed by the jury), judgment was rendered on the verdict, and an appeal to this court has been duly prosecuted.

F. P. Townsley was not summoned to answer the complaint and did not appear; the action seeming to have been abandoned as to him. The circuit court inadvertently, it appears, rendered judgment against F. P. Townsley, as well as against his father, and as to him the judgment must be reversed.

The defendant C. G. Townsley was engaged in the mercantile business in the city of Little Rock, operating what is known as the Dollar Store. His wife assisted him in the store, waited on customers, superintended the clerks, and overlooked the business generally. F. P. Townsley was an electrical engineer in Milwaukee, Wis., but was at home visiting his father and mother for a short time, and while here he assisted them in the store. On December 20, 1909, which was during the rush of the holiday trade, Mrs. Yentsch, came in and went to a table in the middle of the store, to look at some ornamental wall baskets or whisk-broom holders, which were displayed on the table. All of the clerks — most of them ladies — were busy at the time, waiting on other customers, so for that reason no one went to wait on Mrs. Yentsch. She picked up a basket to examine it and looked around for a clerk of whom to ask the price, but observing that all were busy and being in a hurry to return home she put the basket down and started along the aisle to the door. Mrs. Townsley observed Mrs. Yentsch, as she relates, picking up the baskets and putting them down again as if examining them, and, as Mrs. Yentsch started down the aisle, Mrs. Townsley thought she observed that Mrs. Yentsch still had one of the baskets. She called to her son, who was standing near the front door, to the tell the lady with the furs (meaning Mrs. Yentsch) that she wanted to speak to her. F. P. Townsley, in compliance with his mother's request, spoke to Mrs. Yentsch and said, "Wait a minute; Mother wishes to speak to you." C. G. Townsley was in the store at the time and did not participate in the occurrence, and was not, so far as the testimony discloses, immediately present.

Thus far the facts are undisputed; but as to what was said by Mrs. Townsley the testimony is sharply conflicting. The plaintiff testified that Mrs. Townsley seized her by the arm and said, "I want that basket you have got; I saw you steal it; you have got it in your muff," at the same time took the muff off her arm, running her hands through it, and searching around her body. She says that she went on out of the front door without fully realizing for the moment that she had been accused of stealing; but, after standing out in the vestibule a few minutes, she returned and said to Mrs. Townsley, "It just came to me that I have been accused of stealing," and that the latter replied, "Well, I thought I saw you pick up that basket and make for the door," and she then said to Mrs. Townsley, "You must be very careful in the future about such mistakes," and went on out, thus closing the incident. She testified that she was greatly humiliated and embarrassed on account of the accusation, and was nearly sick from it for two or three days; that several customers were present at the time, none of whom she was acquainted with, and no one spoke to her about it, except a Mrs. Daniels, who was present and displayed considerable solicitude concerning her, though not acquainted with each other at the time. Mrs. Daniels testified substantially the same as plaintiff as to what was said by Mrs. Townsley.

Lula Divis, another witness introduced by plaintiff, testified that Mrs. Townsley seized plaintiff's arm, and took off her muff, searching it, and said, "I thought you had a basket," or "Did you have a basket?" Still another of plaintiff's witnesses gives the following account of the occurrence: That F. P. Townsley said to the lady (plaintiff), "Wait a minute; Mother wishes to speak to you." That Mrs. Townsley came up and asked the lady, "Do you want the basket?" The lady replied, "What basket?" Mrs. Townsley asked, "Did you have one in your muff?" She answered, "I have not," and Mrs. Townsley said, "That's all right, go ahead." That plaintiff went out the door, and in a few moments came back and talked a little while with Mrs. Townsley. That plaintiff left, and after being gone 15 or 20 minutes came back and walked about the store, talked angrily to different persons that were shopping.

Mrs. Townsley testified that she thought she saw a basket in plaintiff's hands as she started down the aisle and supposed she was looking for a clerk, and would stop at the last clerk before she reached the door; that she followed plaintiff and asked, "Do you want the basket?" or "Have you a basket?" That plaintiff replied, "I have no basket," and she then said to her, "All right." That plaintiff came back in a few minutes and asked, "Do you think I would steal?" to which she replied, "Why, I don't know you, and you don't know me," and explained to plaintiff that it was easy to make mistakes around a big store. That plaintiff asked, "Do you apologize?" and she replied, "I certainly do," which ended the incident. Other witnesses corroborated Mrs. Townsley.

The court gave instructions, submitting the questions to the jury as to the agency of Mrs. Townsley for her husband and of her authority as such, and also as to his...