Walgreen Co. v. Cochran

Decision Date03 October 1932
Docket NumberNo. 9359.,9359.
Citation61 F.2d 357
PartiesWALGREEN CO. v. COCHRAN.
CourtU.S. Court of Appeals — Eighth Circuit

Robert B. Fizzell, of Kansas City, Mo. (Justin D. Bowersock, P. L. Edwards, and Bowersock, Fizzell & Rhodes, all of Kansas City, Mo., on the brief), for appellant.

Henry L. Jost, of Kansas City, Mo. (G. H. Jones and Sebree, Jost & Sebree, all of Kansas City, Mo., on the brief), for appellee.

Before VAN VALKENBURGH and SANBORN, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge.

This is an appeal from a judgment entered in an action for slander. The cause was heard by a jury which returned a verdict for appellee for $3,500 actual, and $4,000 punitive, damages.

The errors assigned relate to: (1) The sufficiency of the evidence; (2) the admission of testimony; (3) argument of counsel; (4) the instructions; (5) the damages assessed; and (6) the ruling on the motion in arrest of judgment.

The appellant was the owner and operator of a number of retail drug stores in Kansas City, and elsewhere. The appellee was, from March 19, 1930, to March 29, 1930, cashier in one of these stores in said city. Her duties were, generally, to receive money from, and to make change for, customers who made purchases in the store. At the end of each day she was required to make a report of the amount recorded on the cash register as having been received, and the amount of cash on hand. William Bush was the manager of the said store, and in that capacity had general supervision of the same, and the employees therein. During the short time that appellee was employed in the above-mentioned capacity, there was a discrepancy in the cash recorded and on hand on three different days. On the morning of March 29th, the manager spoke to appellee about the discrepancies, as he had previously done, and stated that he would get the reports, which he did. While the manager and appellee were standing at the cash register, behind the counter, examining the reports, he is charged in the petition to have said to appellee, within the hearing of Jesse L. Rose, and Dale Potter, two customers in the store, "Your report last night did not check. I am watching you and will see that these shortages stop."

The witness Rose stated that the manager said, "Your report of last night did not check, and these shortages will have to stop."

The witness Potter recalled that Bush said to appellee, "Your accounts didn't check last night. This shortage is going to stop. I am going to see that this shortage stops."

These were the only witnesses who testified to the publication of the alleged slanderous words, and neither of them heard the words, "I am watching you" as set out in the petition. In this situation the trial court properly ruled that the words as heard by third parties, and not the statement as heard by appellee, must be considered in determining the character of the utterance.

The position of the appellee is not that the alleged defamatory statement was in itself actionable, but it was alleged by way of innuendo that the manager of the store intended to charge, and did charge, appellee with the crime of embezzlement, and that his language was so understood by those who heard it.

Statements which impute theft to another, when made in the hearing of others, are actionable. If the words taken in their usual and ordinary meaning are incapable of conveying to a person of ordinary understanding an imputation of larceny, then they are not actionable. When the language used is fairly susceptible of two meanings, one innocent, and the other defamatory, it is ordinarily a question for the jury to determine whether the words used at the time, in the manner, and under the circumstances, were intended to charge the commission of a crime. Newell on Libel and Slander (4th Ed.) § 543; Pandolfo v. Bank of Benson et al. (C. C. A. 9) 273 F. 48; Washington Post Co. v. Chaloner, 250 U. S. 290, 39 S. Ct. 448, 63 L. Ed. 987; Commercial Publishing Co. v. Smith (C. C. A. 6) 149 F. 704; Peck v. Tribune Co., 214 U. S. 185, 29 S. Ct. 554, 53 L. Ed. 960, 16 Ann. Cas. 1075.

In this case the language of which complaint is made was spoken by an employee of appellant vested with supervisory control of the other employees of the store. Discrepancies in appellee's accounts had occurred, and the manager had been directed by appellant to see that mistakes in this respect were avoided in the future. While he had called appellee's attention to the matter before, he again went over the report with her, and gave utterance to the statement that is now charged to have been slanderous. In this connection the trial court correctly held the occasion was one which invoked the rule of qualified privilege. This is said to mean that a communication made in good faith upon any subject in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding duty or interest, although it is of such a nature as to be slanderous, in the absence of such privilege. New York & Porto Rico S. S. Co. v. Garcia (C. C. A. 1) 16 F.(2d) 734; Montgomery Ward & Co. v. Watson (C. C. A. 4) 55 F. (2d) 184, 188; Pattie De Van Rose v. Tholborn, 153 Mo. App. 408, 134 S. W. 1093; Wise v. Brotherhood of Locomotive Firemen and Enginemen (C. C. A. 8) 252 F. 961.

The defense of qualified privilege was not pleaded, but the existence of facts giving rise to the privilege was alleged in the petition and shown by the evidence offered by appellee. In this situation it was not necessary to specially plead this defense. Kersting v. White, 107 Mo. App. 265, 80 S. W. 730. This rule is peculiarly applicable here, where the exact words alleged to...

To continue reading

Request your trial
12 cases
  • Scott-Burr Stores Corporation v. Edgar
    • United States
    • United States State Supreme Court of Mississippi
    • January 3, 1938
    ...200 N.C. 356, 157 S.E. 16; Creel Grocery & Baking Co. v. Yount, 8 Cir., 66 F.2d 700; Odgers on Libel and Slander, p. 245; Walgreen Co. v. Cochran, 8 Cir., 61 F.2d 357, many other cases too numerous to mention. The occasion complained of being one of qualified privilege, which repels the leg......
  • Kroger Grocery & Baking Co. v. Harpole
    • United States
    • United States State Supreme Court of Mississippi
    • March 2, 1936
    ......230] . Sands v. Robison, 20 Miss. 711; 36 C. J. 1248;. Jarnigan v. Fleming, 43 Miss. 710; A. & V. Ry. v. Brooks, 13 So. 847; Walgreen Co. v. Cochran, 61 F.2d. 357. . . A. communication is privileged when made in response to inquiry. of plaintiff. . . 36 C. ......
  • Sylvester v. Armstrong
    • United States
    • United States State Supreme Court of Wyoming
    • December 5, 1938
    ......L. R. 1651;. Cadle v. McIntosh (Ind.) 99 N.E. 779; Lauder v. Jones (N. D.) 101 N.W. 907; Doyle v. Clauss, . 180 N.Y.S. 671; Walgreen Co. v. Cochran, 61 F.2d. 357; Vial v. Larson (Iowa) 109 N.W. 1007; Rigney. v. Keesee & Co. (W. Va.) 139 S.E. 650; Abraham v. Baldwin (Fla.) ......
  • Missouri Pac. Transp. Co. v. Beard
    • United States
    • United States State Supreme Court of Mississippi
    • September 20, 1937
    ...not only not a libelous publication, but that it was not defamatory at all. U. S. F. & G. v. State of Oklahoma, 43 F.2d 532; Walgreen Co. v. Cochran, 61 F.2d 357; Thomas McShan, 99 Okla. 88, 225 P. 713; Whitley v. Newman, 9 Ga.App. 89, 70 S.E. 686; Grand Union Tea Co. v. Lord, 231 F. 390; P......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT