Braman and the Gus Blass Co. v. Walthall

Appellees, Myrna Walthall and Addie Allen, filed separate slander suits against appellants, Gus Blass Company and Don Braman. The original complaints also contained a second cause of action against appellants for restraint of liberty, but the trial court sustained appellants' motion to require appellees to elect, and the second counts were stricken as being improperly joined under 1283 of Pope's Digest. The original complaints also made three other employees of Gus Blass Co. party defendants, but appellees dismissed the suits as to two of these and took a non-suit as to the other.

The Gus Blass Co. operates a department store in the City of Little Rock with appellant, Don Braman as its store superintendent. Appellee Walthall entered the employ of the company as cashier in the piece goods department in April, 1945, and appellee Allen, was employed as saleslady in the same department in April, 1946.

In their complaints appellees alleged that appellant Braman falsely and maliciously called them "liars", "thieves", "cheats" and "lying thieves" in the presence of each other and in the presence of other employees of the company; that said false and slanderous statements were made with the malicious intent to, and did, expose appellees to public hatred, contempt and ridicule; that said statements were spoken by Braman in an insulting, boisterous and contemptuous manner and by use of vile, obscene and profane language; that by reason thereof appellees suffered physical illness, mental anguish, embarrassment, humiliation and damage to their reputations for which they were entitled to recover both actual and punitive damages.

In their answers appellants objected to the jurisdiction of the court on the ground that the Workmen's Compensation Commission had sole jurisdiction. The answers, as amended, also contained a general denial and alleged the truth of the alleged slanderous statements, if made; that appellees conspired with each other to steal merchandise from the company; and that said slanderous statements, if made, were privileged.

The actions were consolidated for trial and resulted in verdicts and judgments for each of the appellees in the sum of $2,000 compensatory damages and $500 punitive damages.

Appellants first contend that the cases should have been transferred to the Workmen's Compensation Commission because the matters complained of arose out of and in the course of appellees' employment by the Blass company. Appellants cite no authority to sustain this novel contention and we find it to be without merit. There is nothing in the Workmen's Compensation Law (Initiated Act 4 of 1948) indicating a repeal of our statutes on libel and slander (Ark. Stats. 1947, 41-2401 to 2412). The act provides for compensation to employees for disability or death from accidental injury arising out of and in the course of employment or from occupational disease arising therefrom. We find nothing in the language of the act which could be construed as including slander or damage to character as furnishing a basis for compensation to employees.

It is also insisted that the evidence is insufficient to support the verdicts. According to the testimony of Mrs. Walthall she was called to Braman's office about 4:30 p.m., September 25, 1947, and told that she was $25.87 short in her cash receipts for September 23, the store being closed on September 24. She gave the following testimony as abstracted in appellee's brief: "The first thing he asked me was if I had a husband and I told him no. Then he started in. He kept me in the store until six o'clock — thirty minutes after closing time. He told me to be back at 9:00 in the morning. I asked him if he was accusing me of taking anything, and he just told me to come back in the morning to get my money. I couldn't get it then — it was all closed. I got in the store at quarter to nine Friday, September 26, and in about ten minutes from then I was in his office back there and he began on me. He had these tickets on his desk and I did not have anything to do with tickets. All I did was stamp tickets. I did not have a sales book. He said ``You took this money and you made a duplicate ticket, leaving off the two dates and putting on these other two. Therefore you stole $11.29, didn't you?' I said, ``No.' He said Myrna, don't lie to me.' I said, ``I am telling you the truth', and he called me everything in the world he could. He shook his finger at me and hit me so many times on the end of my nose until there is a mark there. He said I had taken material and I had stolen money from the store to the extent of $5,000. I kept telling him no. I was crying. I tried to leave. He grabbed me by the arm and pushed me down and said I wasn't leaving. I wanted a drink. I was sick at my stomach. He ordered me not to leave the room — I was to sit there until he finished with me. My arm was black and blue. He would get right up and say ``You little lying thief, you are going to tell me or you are going to pay the price.' I kept telling him I didn't do it, I didn't know who did. He called Miss Cox and told her to start writing. He would stand over me and dictate to Miss Cox. I don't know what all was written. I wasn't permitted to read it. He said I would have to pay the $5,000. He said if I didn't sign the statement he would put me behind bars. He would ask me how I would look behind bars to my little girl to stare at. He picked up the phone to call the bonding company and I started crying harder. . . . He told me if I didn't sign he would follow me and I would be unable to get employment.

"I was afraid of him. He would grit his teeth at me. He called me everything. About 2:00 p.m. he allowed me to get a bowl of soup in the custody of Mrs. Beall. I wasn't allowed to use the telephone. He got up and said I was going to sign that statement. He took hold of my left arm and hit me on the knee with a file board. He said the bonding company would put me in jail. He picked up the phone and said ``Mr. Williams, you have a good case here. I have the goods on her and I want you to go the limit with her.' He was going to have me in jail within three minutes and my daughter could see me only through bars. I did not know the bonding company was in Memphis. He tried to make me say that I took a thousand dollars, then five hundred, and then three hundred. He shook his desk and said, ``Will you say you took anything?' And I said, ``No', and that is why he got so mad."

Mrs. Walthall testified that under these circumstances she signed the typewritten statement without being given an opportunity to read it; that Braman refused to permit her to consult an attorney or call her mother over the telephone; that he called her a thief and lying thief in the presence of three other employees; that after she signed the typewritten statement, Braman directed two other employees to take witness to her home and search for materials; that said employees took from her home two skirts, a blouse and a few pieces of material, part of which had been purchased by her brother and presented to her as a Christmas present, and the balance of which she herself had purchased; that Braman sent down to her desk and got a box containing sweater and dress, which she had just paid out of lay-away for her daughter, some old shoes and glasses belonging to witness, and some material that had been ordered held for customers until called for; that Braman accused her of intending to walk out of the store with the box; that when she returned with the employees to the store, appellee Allen was in Braman's office and he called both of them lying thieves; that after dismissing Mrs. Allen, he told witness to write a statement in long hand, the contents of which he dictated and that she was forced to sign this statement after Braman used the same tactics that had been previously employed in obtaining the typewritten statement.

Mrs. Walthall further testified that after she signed the statement, Braman said it was no good and that he wanted something better. She was given some paper and told to take it home with her and write out a confession and bring it back the next morning. The following morning witness returned to the store with her brother and challenged Braman to make the same statements in the brother's presence that he had made the day before. When she asked for her check and the things that had been taken from her, Braman ordered her out of his office.

We do not set out the testimony of Mrs. Allen which tended to show the same method of treatment as employed in the case of Mrs. Walthall. Certain material was also taken from Mrs. Allen's home and she testified that she wrote out a statement under circumstances similar to those testified to by Mrs. Walthall. Mrs. Allen's 16 year old daughter who was employed on weekends identified part of the material taken from her mother's home having been purchased by her for herself and mother. Both appellees denied that they had ever stolen anything from the store.

A doctor who examined appellees on September 29, 1947, testified that he found them in a nervous, weak and upset condition and that he found two bruises on the right arm of Mrs. Walthall.

Appellees testified of several instances after being discharged by appellants in which they failed to obtain employment after Blass was given as a reference, and of losing jobs obtained without such references after the employer learned of their former employment by Blass.

The testimony on behalf of appellants contradicted that on behalf of appellees on all the material issues. If the jury had believed such evidence, it would have been warranted in finding that the slanderous statements attributed to Braman, if made, were true and made in good faith and without malice; and that appellees made voluntary confessions establishing the truth of the alleged slander. Appellants point out certain discrepancies in the testimony on behalf of appellees and certain evidence offered by appellants which strongly supports their contention on the facts. This evidence does not rise to the dignity of undisputed physical facts so as to warrant this court in setting aside the verdicts. We do not try the issues de novo and under our established rule the verdicts must be upheld if, when viewed in the light most favorable to appellees, there is any substantial evidence to support the jury's determination of factual issues. Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608,96 S.W. 342; C. R. I. P. Ry. Co. v. Manus, 193 Ark. 397,100 S.W.2d 258.

Appellants also contend that the evidence is insufficient to support the verdict because the statements of Braman were made while acting within the scope of his employment as manager of the store to an employee and were reasonably necessary under the circumstances and, therefore, qualifiedly privileged in the absence of express malice which, they insist, has not been shown. In the recent case of Arkansas Associated Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019, we said: "In the case of Sinclair Refining Co. v. Fuller, 190 Ark. 426,79 S.W.2d 736, this court approved the following statement from Newell, Slander and Libel, (Fourth Ed.) p. 450: ``A defamatory communication when necessary to protect one's own interest is privileged, when made to persons who also have a duty or interest in respect to the matter. In such case, however, it must appear that he was compelled to employ the words complained of. If he could have done all that his duty or interest demanded without libeling or slandering the plaintiff, the words are not privileged.' In the same case this court also approved the rule stated in 36 C.J., p. 1248, as follows: ``The protection of the privilege may be lost by the manner of its exercise, although, the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.'"

Appellants rely on the case of Bohlinger v. Germainia Life Ins. Co., 100 Ark. 477, 140 S.W. 257, which involved libel. It was there said: "If the statements are published by one in good faith to another in order to protect his own interest or to protect the corresponding interest of the other in the matter in which both parties are concerned, then such statements are privileged when the subject-matter of the publication makes it reasonably necessary under the circumstances to accomplish the purpose desired. Newell on Defamations, Slander and Libel, (2 Ed.) p. 388; 18 A. E. Enc. Law, 1037; King v. Patterson, 49 N.J.L. 419; Rotholtz v. Dunkle,53 N.J.L. 428, 20 A. 193, 26 Am. St. Rep. 432, 13 L.R.A. 655; Holmes v. Clisby, 121 Grant 241, 48 S.E. 934, 104 Am. St. Rep. 103; Montgomery v. Knox, 23 Fla. 595,3 So. 211; Allen v. R. R. Co., 100 N.C. 397, 6 S.E. 105; Briggs v. Garrett, 111 Pa. 405, 2 A. 513, 56 Am. Rep. 274. But the communications containing defamatory statements thus made should not, in any event, go beyond what the occasion required. If it is shown by the writing itself, or by evidence outside of the communication, that the occasion therefor was abused, or that the statements were not relevant to or went beyond the subject-matter or purpose of the agency or business, or that the statements were made from malice proved, then no protection will arise against the prosecution of an action for libel, although there may exist a common interest or duty of the parties between whom the communication passes. Such intrinsic or extrinsic evidence would show a want of good faith, and would repel the inference that there was no malice . . ." The court further said that if, from the uncontroverted testimony, there is no malice shown, it then becomes the duty of the court to direct a verdict for the defendant.

In Gaines v. Belding, 56 Ark. 100, 19 S.W. 236, the court said: "Where the words spoken are actionable per se, prima facie the law implies malice, and the jury can award compensatory damages only, but cannot award exemplary or punitive damages, without proof of express malice. Whether there was express malice, was a question of fact for the jury. Malice may be shown by the defamatory words themselves and the manner of their publication, and need not be proven by extrinsic evidence. The absence of legal excuse for publishing the slander is evidence of malice. Express malice may be inferred from all the circumstances of the case, but it is not to be inferred from the facts alone that the words are false and injurious to the plaintiff, although an implication of malice arises from these facts that will warrant compensatory damages . . . Where actual ill will or express malice is shown, the jury may give exemplary or vindictive damages, the amount of which it is their province to determine, under proper instructions from the court." See, also, Stallings v. Whittaker, 55 Ark. 494,18 S.W. 829: Newell, Slander Libel (4th Ed.) 277.

When the highly controverted testimony in the case at bar is considered in the light of the rules above announced, we think the questions whether Braman was acting in good faith or was actuated by actual malice in making the statements attributed to him by appellees, and whether he went beyond what his interest or duty required, were properly for the jury. On the whole case the evidence was substantial and sufficient to support the verdicts and the trial court did not err in refusing to direct verdicts for appellants.

When Mrs. Walthall testified that appellant Braman shook his finger at her and hit her on the nose so many times that a mark was left, appellants objected to the testimony on the ground that there was no allegation of physical violence in the complaint. The court limited the jury's consideration of this testimony to the issue of malice. Mrs. Walthall later testified to further instances of Braman laying rough hands on her without any objection to such testimony. While the complaints do not allege physical violence, they do allege malice. We think this evidence was competent for the limited purpose for which it was offered and that no error was committed in so admitting it.

Error is assigned in the refusal of the court to give appellants' requested Instruction No. 6 which would have told the jury as a matter of law that appellees were not entitled to punitive damages. Since we have previously indicated that there was sufficient evidence of express malice to go to the jury, there was no error in the refusal of this instruction.

It is next argued that the court erred in giving appellees' requested Instruction No. 1 because it did not require the jury to find publication of the slander. The instruction reads: "If you find from the preponderance of the evidence that the defendant Braman used the words set out in the complaint to the effect that the plaintiffs were guilty of a crime or crimes, then the plaintiffs are entitled to recover compensatory damages from both defendants unless you should further find from a preponderance of the evidence that plaintiffs were guilty of the crime charged, or unless you find that the use of such words was privileged as hereinafter defined."

The complaints of appellees alleged that the slanderous statements were used in the presence of appellees and other employees who were named. We find it unnecessary to determine whether the word "used" is synonymous with "publish" and its use, therefore, sufficient to meet the objection of appellants. While Braman testified that he asked appellees "a thousand times" to tell the truth, he did not deny that he accused them of taking property from the store or that he made statements to that effect in their presence. The evidence on behalf of appellees as to publication of the alleged slander appears to be uncontradicted and we have frequently held that it is not necessary to submit to the jury an issue established by undisputed evidence. Pacific Life Ins. Co. v. Walker, 67 Ark. 147, 53 S.W. 675; Aetna Life Ins. Co. v. Dewberry, 187 Ark. 278, 59 S.W.2d 607 George v. George, 191 Ark. 799, 88 S.W.2d 71.

In this connection the court gave appellees' requested Instruction No. 8, as follows: "Publication of slander is the utterance of slanderous words whether in the presence of the person slandered and one or more other persons, or the utterance of such words to any other person or persons in the absence of the person slandered. It is not necessary that the slanderous words should be made known to the public generally, or even to a considerable number of persons. It would be sufficient publication if the slanderous words complained of were addressed to the plaintiff, Mrs. Walthall, in the presence of the plaintiff, Mrs. Allen, or were addressed to the plaintiff, Mrs. Allen, in the presence of the plaintiff, Mrs. Walthall." This instruction correctly states the rule set forth in 33 Am.Jur., Libel Slander, 96, as follows: "It is not necessary in matters of libel or slander that the defamation be made known to the public generally, or even to a considerable number of persons. It is sufficient if it is communicated to only one person other than the person defamed, and such a publication suffices even though such person does not believe what is said of the person defamed, at least when the words are uttered maliciously. It has been said that this is true because the injury to the reputation of the plaintiff is not the sole element of injury; the jury has a right to consider also the mental suffering of the person slandered. Another reason is that in the case of defamations which are actionable per se, injury is conclusively presumed."

Appellants also contend that error was committed in the giving of appellees' requested Instruction No. 5 because it omitted the defense of privilege and did not require publication. This instruction dealt with burden of proof as to the truth of the slander and the presumption of good character, reputation and innocence of crime. It was not a binding instruction and is not open to the objections made. The defense of privilege was fully covered in other instructions given by the court.

It is finally insisted that the verdicts are excessive. The evidence on behalf of appellees was sufficient to show that they suffered physical illness, humiliation, mental anguish, embarrassment and loss of subsequent employment on account of the slanderous statements of appellant, Braman. It is true that the evidence in this connection is more favorable to Mrs. Walthall than to Mrs. Allen. Under our decisions we may not set aside the verdicts as being excessive unless we can say the jury was actuated by prejudice, passion or corruption in fixing the amount of damages. In the following cases verdicts were sustained for similar or greater amounts than in the instant case under facts somewhat similar to those presented here. Gaines v. Belding, supra; Safeway Stores, Inc. v. Rogers, 186 Ark. 826, 56 S.W.2d 429; Sinclair Refining Co. v. Fuller, 190 Ark. 426, 79 S.W.2d 736. We conclude that the verdicts are not excessive.

We find no prejudicial error in the record and the judgments are accordingly affirmed.

GRIFFIN SMITH, C.J., dissents.

GEORGE ROSE SMITH, J., not participating.