Crellin v. Thomas ( 1952 )

CROCKETT, Justice.

This is an action to recover damages for two slanderous statements which defendant allegedly made to others concerning plaintiff; One in March or April of 1949, that “Mrs. Crellin was a whore”; the other in October of 1949, that “* * * Mrs. Crellin had worked in a house of prostitution”. The former is clearly slanderous per se, and the second would also seemingly be associated as a charge of unchastity, and apparently was so meant and understood. The defense asserted is that of truth.

The case was tried twice. The first trial resulted in a judgment for the plaintiff which was set aside and a new trial granted on the ground of newly discovered evidence. Upon retrial, the jury returned a verdict of no cause of action.

Plaintiff raises two questions on appeal:

First, that the court abused its discretion in setting aside the first judgment and granting a new trial, and

Second, that the court erred in instructing the jury.

As to the first point: A wide discretion is reposed in the trial court in granting or denying a new trial on the basis of newly discovered evidence. The primary concern of the court is that justice be done, and the granting of such a motion is only reviewable in this court on the question of abuse of discretion. Greco v. Gentile, 88 Utah 255, 53 P. 2d 1155. True, the exercise of judicial discretion in such instance must be based on a showing of substantial material evidence, from which it appears there is at least a reasonable likelihood that it would affect the result in a new trial. See Bowers v. Gray, 99 Utah 336, 106 P. 2d 765; Saltas v. Affleck, 99 Utah 381, 105 P. 2d 176; Jensen v. Logan City, 89 Utah 347, 57 P. 2d 708. The granting of a new trial should never be merely capricious and arbitrary, but should only be done when sound judicial discretion, in the interest of doing justice between the parties, so requires. See 66 C. J. S., New Trial § 201, p. 500 et seq.

Defendant’s representation was that her prior information concerning the plaintiff was that she had lived at Las Vegas, Nevada, and that inquiry had been made for information about the plaintiff there, to no avail; further that she did not learn about her working in Ely in time so the matter could be investigated and used in the first trial. Under Rule 33, U. R. C. P., defendant might have gotten the information as to where she had lived by submitting interrogatories. Nevertheless the showing made was such that we cannot say that the trial court abused its discretion in granting a new trial.

As to the second point, the instruction complained of is as follows:

“The court charges you that truth is an absolute defense in an action of slander, such as this case. If, therefore, you find from a preponderance of the evidence that the plaintiff did at any time in her life work in a house of prostitution in any capacity then in that event your verdict must be in favor of the defendant and against the plaintiff, no cause of action.” (Emphasis added.)

As applied to the issues herein, the first sentence of the instruction is a correct statement of the law. See Am. Law Institute, Restatement of Torts, Sec. 582. The balance of the instruction is erroneous for reasons hereinafter stated.

The evidence is conclusive, and in fact plaintiff admits, that in the early 1920’s she worked for a short time as a “dance hall girl” or “percentage girl” in the “Green Lantern” and a place called “Rhiney’s” in Ely, Nevada, both of which were in the “red light” district. The evidence is in conflict as to the character of these places.

Illustrative of the defendant’s evidence as to the nature of these establishments and their method of operation is the testimony of one Harold E. Woods who had worked in the locality at the time in question and was famliar with the situation. Concerning Rhiney’s Place, he testified as follows: Question:

“What was the general reputation for morality?”

Answer:

“It was a good place * * *.”

Question:

“Do I understand you to say it was a good place for morality, a good reputation?”

Answer:

“It had a reputation for the place it was, as a good place. * * * It was known as a whorehouse — a good one.”

He explained that at these places there was a dance floor, a bar, and adjoining them were little rooms lined in a row down the street known as “cribs”, in which the “crib girls” plied their trade as prostitutes; that

“* * * We would go there into the dance hall. There was always a girl to come and ask you to buy her a drink and dance with you. While dancing there was generally a proposition to go to the crib * * * and a fellow most generally did because he was there for that business.”

According to this witness, there seems to have been a degree of protocol, if not actual chivalry involved in the procedure: Question:

“Did you always go into the dance hall and take the girl out and down the street to the crib?”

Answer:

“Yes;”

and further, Question:

“And after completing your interview with her you took her back to the dance hall?”

Answer:

“Absolutely.”

Contrary to this, plaintiff’s evidence was that these places were not primarily houses of prostitution, although it was practiced adjacent to them, as shown by the testimony of W. L. Tuck. He had lived in Ely for 32 years and had operated dance halls in the red light district. His testimony was that under the method of operation, the “percentage girls” who worked in the dance halls were not supposed to be prostitutes; that they hired a “better class” of girls, the “best girls they could get,” to do the dancing; that while working as “dance hall girls” they were not permitted to work as “crib girls”; that they would dance with the patrons and encourage them to buy drinks which cost $1; that the girl would be served a drink of colored water; that she received 50c of the $1 as her pay from the dance hall operator ; that the dance hall operator did not employ the crib girls; that the crib girls handled their own business and “they hadn’t better catch the dance hall girls out in their territory.”

There was considerable other evidence as to a definite distinction between the dance hall or “percentage girls” and the prostitutes. Plaintiff denied she was ever a prostitute but said her work was as one of the “percentage girls”.

The evidence would have permitted a finding that the dance halls were also houses of prostitution, and hence that the plaintiff “had worked in a house of prostitution” but as a “percentage girl” and not as a prostitute. Under such a finding, the utterance “Mrs. Crellin was a whore” would be false.

Admittedly, when truth is pleaded in justification, it is not necessary to prove the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial, providing that the defamatory charge is true in substance. Retatement of Torts, Sec. 582, Comment (e) ; 53 C. J. S., Libel and Slander, § 137, p. 225. Nevertheless, the language of the utterance just referred to is of such a fixed and certain meaning, 45 Words and Phrases, 133, that it cannot be said that a dance hall girl who does not act as a prostitute comes within that language, even though the dance hall may have been a house of prostitution or that prostitution may have been practiced in connection with it.

The instruction hereinabove quoted made it mandatory upon the jury to find that the alleged utterance was true if the plaintiff worked in any capacity in a dance hall which was also a house of prostitution, which, of course, would include even as a percentage girl. In view of the conflict in the evidence as hereinabove set out, this was obviously wrong. To so instruct was prejudicial error. The case accordingly is remanded for a new trial.

Costs to appellant.

WADE and McDONOUGH, JJ., concur.