Washington Annapolis Hotel Co. v. Riddle

• Decision Date: 01 June 1948
• Docket Number: No. 9225.,9225.
• Citation: 171 F.2d 732,83 US App. DC 288
• Parties: WASHINGTON ANNAPOLIS HOTEL CO. v. RIDDLE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 288, 171 F.2d 732 (1948)

WASHINGTON ANNAPOLIS HOTEL CO. v. RIDDLE.

No. 9225.

United States Court of Appeals District of Columbia.

Submitted December 1, 1947.

Decided June 1, 1948.

Mr. Richard W. Galiher submitted on the brief for appellant.

Mr. James J. Laughlin submitted on the brief for appellee.

Before STEPHENS, CLARK and WILBUR K. MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a judgment for slander. The plaintiff below, Maude Virginia Riddle (appellee) charged in her complaint that the defendant, Washington Annapolis Hotel Company (appellant), by its agent, one Hills, in the presence of others, accused her of a crime and thereby damaged her reputation, caused her pain and mental anguish and impeded her efforts to obtain employment. The defendant denied the charge.

The plaintiff testified that on Saturday, December 25, 1943, she was in the employment of the defendant hotel company as a cashier and assistant auditor and was then on night service. A part of her duty on completing her shift was to enclose in an envelope and deposit in a slot in a safe in the auditor's office the money she had received from hotel guests. During the night of December 25-6, she took in $151 and some cents, and on going off duty at seven o'clock Sunday morning, December 26, she placed in the slot the envelope containing this sum. She reported for duty on Sunday night but was excused for illness. Pearl Jones, another assistant auditor, testified that on Monday, December 27, she inquired of the plaintiff by telephone at her residence as to what she had done with the "turn-in" for Saturday. The auditor's office had been closed on Sunday and apparently the loss of the envelope was not discovered until Monday. The plaintiff replied, according to Miss Jones, that she had put the envelope in the slot as usual. Hills testified that he was assistant to the general manager in the special investigator detail of the hotel chain of which the defendant is a member and that on the night of December 25-6 he was working on relief for the regular house detective; that on Monday evening he called the plaintiff by telephone at her residence and asked and received permission to come to see her there. According to the plaintiff, when Hills arrived there were present, in addition to the plaintiff herself, a friend, named Mrs. Adams, and her son, six years of age. Hills, so the plaintiff testified, said: "Miss Riddle, if you will tell me what you done with the rest of that money, we won't prosecute."¹ The plaintiff replied, "you can prosecute or do anything you want, but I don't have the money." Hills denied making this statement; he testified that on admission to the plaintiff's residence he assured her that "we in no way suspected her of stealing, but we wanted to find out if possible what happened to it. . . . She told me she was sure she put the envelope in the safe but I questioned her, and she said she wasn't sure. She said she put it on a desk; another time she said she put it on the table." According to the plaintiff, Hills requested her to accompany him to the hotel to help find the money and she assented. On the way they passed a bar and Hills asked her to go in and "have some drinks before we go up to the hotel." This invitation she declined. Hills denied extending the invitation. Hills testified also that he had "Not a bit" of ill will or malice toward the plaintiff and no disagreement with her; that the hotel manager had called his attention to the fact that the envelope was missing and asked him to see if he "could get any clue to what happened to it"; that his conversation with the plaintiff was friendly. Further, according to Hills, he found during his investigation that the plaintiff had left her envelope once before on a table and that on that occasion her relief cashier had picked it up and put it in the safe. Hills said that on the occasion in question in the instant case, someone around the office might have taken the envelope since six or seven persons had access to the office; that all of the persons in the auditor's office had access "to this box where this money was contained." He testified further that he questioned everyone who was around there, some six or seven, including the clerk and the telephone operator, and the man who cleaned up — all who might have had access to the room where the plaintiff worked. In investigating the case Hills, according to his testimony, did not visit the homes of employees other than the plaintiff or call them on the telephone since "they were all right there in the hotel." The missing envelope was not found.

The plaintiff testified that on Tuesday, December 28, "I called and told them that I was able to come in to work, and they said, `You don't need to come in; you are fired.' . . . I asked them what I was fired for, and they said, `Stealing.'" According to Romello, the hotel auditor, the plaintiff "called up and stated that she would be to work that night. I said I had made arrangements to cover her, because she had been sick, and I didn't know whether she would come in or not. I said, `No, you are not coming in tonight.' Then, she said, `I want you to tell me that I am fired.' I said, `Well, consider yourself fired.'" "Q Was there anything said then and there as the reason why she was fired? A No, sir. Q Did you ever accuse her of stealing the money? A Never did, sir; never thought of it."

The plaintiff filed the instant suit on December 31, 1943. On January 29, 1944, according to the plaintiff's testimony, her counsel asked the defendant in writing for a release so that she could get employment elsewhere, but the release was refused. Romello, however, testified that he did not give the plaintiff a release for the reason that she never asked for one. He admitted that he knew that at that time she could not get employment elsewhere without a release.²

At the close of the evidence the defendant requested the court to instruct the jury that the plaintiff had failed to prove a cause of action and that the verdict should therefore be for the defendant. This request was upon the ground that the words used by Hills as testified to by the plaintiff were not slanderous, and that even if slanderous they were qualifiedly privileged with a consequent burden upon the plaintiff to show actual malice, and that there was no evidence of such malice. The defendant also requested the court to instruct the jury that the charge of "theft" testified to by the plaintiff was qualifiedly privileged and that the plaintiff to recover must prove actual malice. These requests were denied upon the ground that, there having been a denial by the defendant of the uttering of the words testified to by the plaintiff, the defense of qualified privilege could not be relied upon; that there was no evidence of a basis for the charge of "theft" if made, and no evidence of a complete investigation by the defendant of the loss of the envelope; and that under these circumstances the defense of qualified privilege could not be relied upon. The court at the plaintiff's request and over the defendant's objection instructed the jury that if they believed from the evidence that Hills, the defendant's agent, accused the plaintiff of "stealing" they must find for the plaintiff; and that if they found that in making the accusation the defendant was moved by actual malice, they might return a verdict for punitive as well as compensatory damages.

The defendant objected to the admission of the evidence to the effect that Hills invited the plaintiff to have some drinks. The objection was overruled. The defendant moved to strike from the record the evidence to the effect that the plaintiff was discharged for stealing and that the plaintiff was refused a release. This motion was denied.

During his argument to the jury, plaintiff's counsel said:

Now, members of the jury, I do not intend to talk to you any longer about a situation of this kind. Of course, a poor person always suffers. Do you suppose this hotel would have done that to a rich person's daughter or a rich person's son? Of course they would not. The poor must suffer always in a situation of this kind.

* * *

Of course, Mr. Quinn would have you believe, because he represents a wealthy client, a big hotel, a corporation, that they are as pure as driven snow.

The defendant moved for a mistrial on account of these remarks. The motion was denied.

There was a verdict for the plaintiff in the sum of $500. Motion for a new trial was denied and judgment was entered on the verdict. This appeal was then taken.

The defendant attacks the correctness of the foregoing rulings. We shall state and answer seriatim the questions thus presented.

1. Were the words used by Hills, as testified to by the plaintiff, i. e., "if you will tell me what you done with the rest of that money, we won't prosecute," slanderous? The answer to this question is in the affirmative. The words clearly imputed a crime. Such an imputation is defamatory. Pollard v. Lyon, 1875, 91 U.S. 225, 23 L. Ed. 308; Friedlander v. Rapley, 1912, 38 App.D.C. 208.

2. Assuming that the defense of qualified privilege was otherwise available to the defendant, was it made unavailable by the defendant's denial of the allegations of the plaintiff's complaint concerning the utterance of the slanderous words? The answer to this question is in the negative. Privilege may be availed of under a general denial. Ashford v. Evening Star Newspaper Co., 1914, 41 App.D.C. 395. Moreover, the issue as to privilege was tried by implied consent of the parties. Rule 15(b), Federal Rules of Civil Procedure, 28 U.S. C.A., provides that "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. . . ." It is true that denial of utterance of the slanderous words and reliance upon...