Insofar as abstract facts are concerned, the department *Page 594 store's merchandising methods, and the administrative policies and customs in effect while appellees were employed, are fairly stated in appellant's brief. The majority opinion, pursuant to a judicial custom of stating the facts in a manner most favorable to conclusions reached by a jury, does not detail testimony the Blass Company has emphasized, nor are written confessions set out.
It is my view, therefore, that a clearer understanding of the controversy can be had by showing what the appellants relied upon, since good faith in making the investigation was claimed upon the one hand and denied upon the other.
The preliminary statement by Frank J. Wills, counsel for Don Braman and The Gus Blass Company, is copied. I think, first, that testimony did not preponderate in favor of the plaintiffs, and it became the trial Court's duty to set the verdicts aside. However, on review, we determine only whether there was substantial evidence of actionable misconduct. If in examining the appeal we are compelled to accept as substantial the wholly unreasonable and patently contradictory statements of appellees, — (and it must be remembered that as interested parties their testimony could not be treated as uncontradicted) — still, I think a rational construction of the investigations made by Braman is conclusive of the proposition that he meticulously refrained from giving unnecessary publicity to the transactions, and nothing not required by careful conduct was done to embarrass the parties.
The factual statement from appellants' standpoint is as follows:
"Abnormal inventory shortages had been evident in the Blass Co. piece goods department for more than a year. Appellee Walthall was cashier and appellee Allen was a saleslady in that department, each having been so employed for many months.
"Appellee Walthall, on September 26, 1947, admitted in writing that she had taken in excess of $14.00 in money and a large amount of merchandise from the store without payment. She went to her home with *Page 595 Evelyn Cox and Margaret Beall where the merchandise was recovered.
"On September 26, 1947, appellee Allen admitted in writing that she had likewise taken a large amount of merchandise. She went to her home with Miss Cox and Mrs. Beall where the merchandise was found.
"A few weeks later, appellees filed separate suits for slander, alleging the Blass Company and Braman called them liars, thieves, cheats, and lying thieves while they were employees of the Blass Company.
"To appreciate how the matters leading to these causes arose, it is necessary to know the method of making cash sales at the Blass Company and the internal control thereof, which is as follows:
"1. Each cashier has a specific identifying mark which is stamped on each cash sales ticket handled. Mrs. Walthall's was a number "1" in a circle. Each cashier begins the day with a certain amount of "bank money" with which to make change.
"2. Separate cash sales books with specific identifying serial numbers on each sales slip therein are issued to salespersons, who must use the books charged to them.
"3. When making a cash sale, the salesperson uses the next consecutive numbered ticket in her book and shows: (a) Number of the department (b) Identifying number of the salesperson (c) The total amount of money or check received (d) Detail of items sold with the total amount of sale and tax.
"4. The salesperson herself, or a sales assistant, takes the merchandise, money and original sales ticket to the cashier, who stamps the ticket, puts the money in her separate cash box and makes change, puts the original ticket on her spindle and gives the salesperson a perforated portion of the ticket with the same identifying number thereon, which acts as a claim check. The cashier hands the merchandise to the bundle wrapper who delivers the wrapped merchandise in exchange for the claim check, which is to be held for 30 days.
"5. The sales audit department picks up from each cashier every hour or so during the day, all cash sales *Page 596 tickets, checks the extensions and additions, sees that each ticket is accounted for in numerical order from each salesbook, and enters the total on a control sheet for each cashier. All errors in extension and addition must be okayed by the department head.
"6. At the end of the day, each cashier counts her cash, including her "bank money" and turns it in to the general offices on the fourth floor with her report. The next morning, the cash is verified by the general office with the report from each cashier, and the net amount of cash sales turned in to the general office should balance with the controls over each cashier that have been maintained by the sales audit department.
"7. Prior to the events that resulted in this litigation, the unused portions of sales books of salespersons who left the employ of the Blass Company were not checked in by the auditing department, but were left on a ledge near the cashier's desk.
"Appellee Walthall's cash for Monday, September 22, 1947, balanced. The next day it was short $25.87, but this shortage was not discovered until the following Thursday, the store having been closed for the intervening day.
"On Thursday, September 25, 1947, when the general office report of the net cash sales turned in by Mrs. Walthall was shy $25.87 of the sales audit control over her cash sales for Tuesday, an auditor telephoned her to ask if she had misplaced a check or money order, there having been a cash sale in her work for Tuesday for $25.87, which showed a check had been received in payment. Within a short time, Mrs. Walthall asked if the outage was on clerk No. 787 (Mrs. Viar). When told it was, she asked if her shortage was around $25.00. Up to this time, the auditor had not told her whether her cash was over or short, or the amount of the outage. Mrs. Walthall then told the auditor that clerk 787 had a sales book with two identically numbered tickets, and one of them should have been voided and must have gotten into her Tuesday's work in error. The auditor then asked her to get the customer's claim checks for *Page 597 the two identically numbered sales tickets but was told neither of them could be found.
"On that Thursday morning, the sales audit department delivered to appellant Braman, sales ticket with printed number 2410-25 for $25.87 from Tuesday's business and ticket with hand-written number 2410-25 for $11.48 from Monday's business. Both tickets bore Mrs. Walthall's stamp with a number (1) in a circle. He called Mrs. Walthall to his office, showed her the tickets, and asked what she knew about them. She said the $25.87 ticket should have been voided because the customer was annoyed at the delay in getting her check okayed by the credit department and decided to take only the first item listed on the sales ticket, a new ticket for the lesser amount of $11.48 was made and the $25.87 ticket should have been voided.
"Having procured from clerk No. 787 the name and address of the $25.87 customer, Braman telephoned Mrs. Kontsonkos at Hot Springs and learned she had received all the merchandise for which she issued her check to the Blass Co. for $25.87.
"On Friday morning, when told the customer had taken the full $25.87 sale, Mrs. Walthall admitted that on the day of that sale, she had taken a ticket from a discarded sales book, torn off the printed number and substituted in pencil the number 2410-25, recorded a $11.48 sale, and had pocketed the difference of $14.39 to apply on a dentist bill for one of her children. She had intended to destroy the $25.87 ticket but it got into her work for Tuesday. Had she destroyed this $25.87 ticket, her cash would have balanced for Tuesday and this method of diverting sales receipts from the Blass Co. would not have been discovered. When it got into her work for Tuesday, she was short that day the exact amount of $25.87.
"When Mrs. Walthall said she was ready to tell the truth about the whole matter, Miss Cox was called to take her statement in shorthand, which was done in the presence of Margaret Beall. Braman went about his work and returned in about half an hour and had Miss *Page 598 Cox read back her notes in the presence of Mrs. Walthall. He then asked a few questions which Mrs. Walthall answered, which were taken in shorthand by Miss Cox. Miss Cox then began transcribing her notes in an adjoining office.
"Mrs. Beall had brought to Braman's office, two tied up suit boxes full of things from Mrs. Walthall's desk. They contained some shoes, letters, and many pieces of merchandise. Of this merchandise, Mrs. Walthall said the black material was for a slip for herself and for Mrs. Allen, three pieces of blouse material were for herself, and she had intended to take both boxes home with her.
When Mrs. Walthall and Mrs. Beall returned from lunch, Miss Cox had completed transcribing her notes. The statement was handed to Mrs. Walthall who read it and then signed it in the presence of Braman, Miss Cox and Mrs. Beall. The substance of the statement is as follows:
"`I forged the ticket and pocketed the $14.59. About six months ago, Mrs. Allen and I began a plan whereby Mrs. Allen would cut off certain materials for herself and for me without making sales tickets or payments. I put the materials in sacks and delivered those of Mrs. Allen to her son, Jerry. I had secreted mine in a house package and have a box full at home I got that way. Of the goods I intended to take home today, the tan wollen was cut for me by Mrs. Allen about three weeks ago. The black silk material was cut by Mrs. Allen for herself only yesterday. Mrs. Allen intended to pay for the black tube dress. A refund had been written for the green dress but it did not go back in stock. The blue material was returned yesterday but I did not want it. I paid for the satin material and pattern on pay day; bought the shoes at the basement sale for $1.00; these items I intended to take home and the box of materials I have at home are all I have taken. The box at home contains some gingham, several pieces of blouse material and maybe a skirt.
"`I never took any money from my cash box except on that one ticket No. 2410-25. It is all right for Mrs. *Page 599 Beall to go to my home and bring back the merchandise. I have admittedly taken from the Blass Co.'
"`A fuchia blouse has been made up for me but I bought the childrens' clothes in lay away. I will show you exactly what I have taken when you go to the house with me. I never gave anyone a piece of material over that desk except Mrs. Allen. The gross amount I have taken won't be $200.00.'
"When Mrs. Walthall arrived at her home with Miss Cox and Mrs. Beall, she went directly to her closet and handed them a box of materials she said she had taken from the store without payment. The list of these 12 items totaling $35.95 is at page 355.
"When they returned from Mrs. Walthall's home, Braman was interviewing Mrs. Allen. Mrs. Walthall was given some paper and asked to write another statement, which she did in the training room which is about three offices from Braman's. The original of this statement is at page 353 and the substance is as follows:
"`About February, Mrs. Allen cut off some gingham and asked me to hold it for her and one of her kids would be up to take it out for her, which I did. She also cut some blouse material for me and the next time I bought something, I took the blouse material home in a house package. The material I have at home and what is in the desk is all I've had cut off.
"`The other day I got a statement from the dentist saying he was turning my account over to the credit bureau if I didn't pay it. I got a ticket and made a duplicate, leaving off two items and took the $14.59 to pay the dentist. This is the first time I ever did this.'
"The substance of Mrs. Allen's statement which is wholly in her own handwriting, is as follows:
"`For the past year and a half I have cut off materials for Myrna and myself but do not know how much. I also know Mrs. Lee carried out material for Myrna and cut it off for her, but I do not know how much. As far as I can recollect, the following is all I took. (7 items totaling $26.06 are then listed in detail.) During the *Page 600 style show, a lot of material was taken from the department without any accounting.
"`About the black material, Myrna said her mother would make each of us a slip and 3 1/2 yards would make two slips, so I cut the 3 1/2 yards off.'
"Mrs. Allen also agreed Miss Cox and Mrs. Beall could go to her home with her to get the materials she admittedly had taken without payment. Mrs. Allen did not return to the store when they brought back the 6 items totaling $26.00.
"Mrs. Allen went to her lawyer on Saturday, September 26, and never did go back to the Blass Co. to claim any of the materials recovered from her home.
"On that same Saturday, with her boy friend, Mr. Metrailer, and her brother, Vance Mason, Mrs. Walthall called on Braman. She was excited and her brother asked her and Metrailer to leave the office, so he could talk with Braman. Braman gave Mason the personal things his sister had packed in the two suit boxes, except the merchandise she had admitted belonged to the Blass Co. Braman told Mason he was turning the matter over to the bonding company, understood they did not want their mother to know about it, and it might be worked out by Mrs. Walthall paying a little every week on the shortage. Mason was to talk further with his sister and report back to Braman, but he did not return.
"After completing its independent investigation, the bonding company paid the Blass Co. a $2,500.00 settlement for the inventory shortages in the piece goods department.
"Appellees Walthall and Allen had various temporary jobs through the end of 1947. In the early part of 1948, Mrs. Walthall obtained a position with a bank in Little Rock and Mrs. Allen obtained one with U.S. Time Corporation. Both of them were so employed at the time of the trial at better jobs than they had with the Blass Co.
"Neither appellee denied signing the statements, but both testified they wrote only what Braman dictated. *Page 601 They could not explain how Braman could describe the various pieces of materials referred to in their statements as being in their homes, nor could Mrs. Allen explain why she had given in her statement as one of the causes of the inventory shortages, her explanation that much unrecorded material was used in the style show. Over appellants' objections and exceptions, they were permitted to testify that Braman used physical force and violence to their persons while interviewing them, notwithstanding no allegations to that effect were contained in either complaint on the slander counts.
"Mrs. Whitehall testified she was called a liar and thief in the presence of Miss Cox, Mrs. Beall and another employee who was in and out of Braman's office. Mrs. Allen testified she was so slandered only in the presence of Mrs. Walthall and her character and reputation were not damaged thereby. Appellants' requests for a verdict in their favor in each case were denied over their objections and exceptions.
"Verdicts for $2,000 actual and $500 punitive damages to each of the appellees were signed by nine of the jurors."