Pion v. Caron

Crosby, J. These are actions of tort for slander. The defendants are husband and wife. The latter was the proprietor of a department store and her husband was employed by her therein as assistant manager, charged with the géneral duty of looking after the store and the stock. On the night of April 9, 1919, she told him to discharge the plaintiff, who was employed — 110 — as a clerk in the store. On the following morning when he discharged the plaintiff, there was evidence that he charged her with theft in substantially the words set forth in the declaration, spoken in French, in the presence of several persons who understood that language. The defendant Amedee Caron testified that on the occasion referred to he did not accuse the plaintiff of theft but discharged her for other reasons, and that whatever words he then used were spoken in answer to a question by her as to what she had done. This was denied by the plaintiff. In these circumstances it was a question of fact for the jury on all the evidence as to what was said by the parties on that occasion. It is the contention of the defendants that if the words alleged were spoken, they were spoken under such circumstances as to be privileged. It is undoubtedly true that if the defendants, having reasonable cause to believe that some one had been stealing goods from the store, had attempted merely to discover the guilty party for their own protection, and in good faith, without malice, and in the belief that it was true had charged the plaintiff with theft, the words would be privileged. Brow v. Hathaway, 13 Allen, 239. Dale v. Harris, 109 Mass. 193. Billings v. Fairbanks, 136 Mass. 177. Christopher v. Akin, 214 Mass. 332. Wormwood v. Lee, 226 Mass. 339. Where, as in the case at bar, the words alleged to have been spoken are of themselves actionable, the law infers that they were spoken with a malicious intent. This inference, however, may be rebutted when the circumstances are such as to exclude the idea of malice and it is shown that they were spoken in good faith in the performance of a duty with an honest intent to protect the interest of the party using the words, and the plaintiff must prove malice in fact in order to recover. There was evidence that the defendant, who is alleged to have made the charge, spoke in a loud tone of voice. He testified that he was “a little angry;” he further testified that when he discharged the plaintiff he did not believe that she had stolen anything. As the verdict has established the fact that he did accuse her of stealing, it would seem that he made the charge although he believed it to be false. It was a question of fact whether he was acting in good faith or in part from malice. Robinson v. Van Auken, 190 Mass. 161. Crafer v. — 111 — Hooper, 194 Mass. 68. Accordingly the defendants’ first, second, third and fourth requests were rightly refused. There was evidence that several employees and two police officers who understood French were in the store when the words were spoken, and that they were spoken in French; and one witness testified that she understood that language and heard and understood the words complained of. If this evidence was believed, it was sufficient to show a publication of the words in question. Accordingly the fifth request could not properly have been given. It was not necessary to show that the exact words charged were spoken, but only that the substance of the language was proved. Robinson V. Van Auken, supra. In the case at bar, there was evidence that the words spoken were substantially as alleged. It follows that the ninth request was rightly denied. The tenth request could not have been given. The plaintiff is entitled to recover as an element of damages for mental suffering caused by the publication of the slander. Chesley v. Tompson, 137 Mass. 136. Finger v. Pollack, 188 Mass. 208. Ellis v. Brockton Publishing Co. 198 Mass. 538, 543. The eleventh request was fully covered by the charge so far as it properly could have been given. The action against the female defendant was brought to recover damages for the slanderous words uttered by her husband while in her employ, as her servant and agent. Upon familiar principles a master is liable for the wrongful acts of his servant committed within the scope of his authority.. Zinn v. Rice, 161 Mass. 571. Borley v. Allison, 181 Mass. 246, 248. Devine v. New York, New Haven, & Hartford Railroad, 205 Mass. 416. Murphy v. Bay State Wine & Spirit Co. 212 Mass. 285. Mills v. W. T. Grant Co. 233 Mass. 140. She testified that her husband was assistant manager charged with the duty of looking after the store and the stock, and that on the night of April 9, 1919, she told him to discharge the plaintiff. If, as the jury could have found, the slander was uttered while carrying out that order, it is clear that the wrong he committed could be found to have been within the scope of his employment, for which she would be responsible. If the tort was committed, it could have been found that both defendants were liable although there could be but one satisfaction in damages, and the jury were so instructed. Elliott v. Hayden, — 112 — 104 Mass. 180. Oulighan v. Butler, 189 Mass. 287, 293. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 582. D’Almeida v. Boston & Maine Railroad, 209 Mass. 81, 87. The twelfth request was rightly denied. As no error of law appears, the entry must be Exceptions overruled.