Slander. Larceny. False Imprisonment. In an action by a bookkeeper against her employer for slander in charging her with larceny of money in the presence of a police officer called by him to arrest her, the communication is privileged only if made in good faith and without malice, and if it appears that the defendant was angry when he made the charge, it is a question of fact for the jury whether he was acting in good faith or in part from malice.
In an action for slander in charging the plaintiff with larceny of money belonging to the defendant, it is not necessary to prove that the exact words alleged in the declaration were spoken. It is enough to prove that such of the words as are necessary to constitute a charge of larceny were spoken in substance by the defendant.
Reasonable ground for believing that a woman employed as a bookkeeper in a picture store has stolen a sum of money less than $100 from her employer while in the store in his presence does not justify a police officer in arresting the woman without a warrant, and if by direction of her employer he arrests her without a warrant and locks her in a cell at the police station, she may maintain an action against her employer for false imprisonment.
KNOWLTON, C.J.
This case was submitted to a jury on two counts, one for slander and the other for false imprisonment. The alleged slander was in making a charge of larceny against the plaintiff in the presence of a police officer whom the defendant induced to arrest and imprison her. The judge ruled in favor of the defendant, that the occasion was privileged, and that the defendant was not liable if he made the charge in good faith and without malice. He said: "And so you will see that he would be excused so far as the count of slander is concerned, unless in saying what he did to the officer, at the time he said it, he said it not in good faith, but said it wantonly and recklessly and maliciously in the sense that he did it out of an entire disregard to the rights of the person whom he was accusing." We are of opinion that the defendant has no good ground of exception to this instruction. The protection of a privilege of this kind is lost by an abuse of the privilege. Bradley v. Heath, 12 Pick. 163. Brow v. Hathaway, 13 Allen, 239.
The defendant contends that there was no evidence that would warrant the submission to the jury of the question whether the defendant acted in bad faith, and with actual malice, in making the charge. While the evidence on this point would have well warranted a finding that he was acting within his privilege, the defendant himself testified that he got angry on the occasion when he made the charge, and, when asked what his feelings toward the plaintiff were, answered: "I was mad, a little mad at that time." The plaintiff testified to his conduct indicating the same thing, and we think it was a question of fact for the jury whether he was acting in good faith, or in part from malice.
The defendant's fifth request for instructions includes the question whether the evidence warranted the jury in finding that the material allegations of the declaration were proved. It was not shown that the exact words charged were spoken, and the question is whether the substance of the language was proved. The plaintiff was not bound to prove all the words set out in the declaration. It was enough if she proved the substance of such of these words as were necessary to constitute a charge of larceny. Clark v. Brown, 116 Mass. 504. Whiting v. Smith, 13 Pick. 364. While the form of the language used by the defendant was not very particularly inquired about by the counsel on either side, and the statements were rather general, there can be no doubt that, in a variety of forms, the defendant, in the presence of the police officer, charged the plaintiff with a larceny of money. A part of the language alleged in the declaration to have been spoken is, "I charge her with the larceny of my money." The plaintiff testified to different expressions of the defendant in the presence of the officer, which amounted to a charge of larceny of the money, and she said of the defendant and the officer who arrested her, who were together at the police station, that "they told the sergeant at the desk that he accused me of taking this money and I was held." We are of opinion that there was no error in the trial upon the count for slander.
As to the count for false imprisonment, the only material departure of the presiding judge from the contention of the defendant's counsel was in regard to the nature of the offence for which the plaintiff was arrested. The legality or illegality of the imprisonment depends upon whether the officer had reasonable cause to believe her guilty of a felony. The evidence tended strongly to show that he had reasonable cause to believe her guilty of larceny; but the money alleged to have been stolen was only $74.55, and there is no contention that the stealing of this was a felony, unless the crime was larceny in a building. According to the undisputed testimony, the plaintiff's only opportunities to steal the money were on June 16, while she had it in her hands in the performance of her duty as bookkeeper, and took the defendant's key in his presence to unlock the compartment in the safe into which it was to be put, and on June 18, in the morning, when the defendant gave her the key to unlock the compartment, and after she had unlocked it and taken the money into her hand, in his presence, by his authority. She could not have taken the money while it was in any sense in the custody of the building, and it was possible for her to take it only while she had the custody of it in his presence, and while the compartment was unlocked. Larceny under such circumstances would not be larceny in a building. Commonwealth v. Lester, 129 Mass. 101. These were the circumstances of the alleged stealing, as they were stated to the officer. The judge rightly submitted to the jury the question whether the officer, who imprisoned her at the defendant's request, had reasonable ground for believing that she had committed larceny in a building, as distinguished from simple larceny.
Except in the particulars referred to, the defendant's requests for instructions were given in substance.
Exceptions overruled.
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