Fleisher v. Ensminger

Adi-uxs, J., delivered the opinion of the Court. On May 15th, 1920, Max Eleisher, the appellant, while in charge of the first floor of his store in Hagerstown, saw Josephine Ensminger, the appellee, who was employed as a saleswoman in said store, sell two hair nets, and drop the proceeds, twenty cents, in the pocket of her apron. Tt appears from the testimony that the rules of the establishment required the clerks, after making sales, to wrap up the merchandise sold and receive the money for it, before handing it to the customer, and then take the money to the cash register, ring it up, take the receipt or slip from the register, wrap it up with the merchandise, and then hand the parcel to the customer. There is a conflict of testimony as to whether appellee had been instructed in these rules, but she testifies that her practice was to do these things because she saw the other girls doing them.

On this occasion, she says, she put the money in her pocket, because a lady was waiting for her to show her goods, and she did not stop to go to the cash register, intending to do so after waiting on the customer; that before she had time to do so she was sent for by appellant to go to his office on the third floor. Eleisher testified that Hoffman, the manager of the first floor, came in right after the sale of the nets and the deposit of the money by Miss Ensminger in her pocket, and he told Hoffman to watch her pretty close and see if she would ring up the money before he called her to his office; that Miss Ensminger passed the cash register several times while he was talking to Hoffman, and before he left she passed over to the left and was folding some veils; that he then went to the second floor and from there to his office on the third floor and told the operator to call her to his office, and that she came in response to the call. ⁶¹⁶ Miss Ensminger’s account of the call to Fleisher’s office and the subsequent occurrences was as follows: That after Mrs. Heckert, the customer to whom she went after selling the nets, left the store, Robert Chatkins, an employee, told her Fleisher -wanted to see her on the third floor and she said “all right,” and she and Ohatkins started to the elevator; that she had started for the register to ring’ up the twenty cents; that both of them went up in the elevator to the third floor; “we got off and he took me back to Mr. Fleisher’s office, and on the way back to the elevator, I saw Mr. Marks .coming through there on the first floor — he was getting the money from the registers and I said 'why, there is Mr. Marks now,’ and he said, 'He will be up after awhile,’ or something like that. We went on up and he took me back to Mr. Fleisher’s office and he said ‘here she is,’ as he opened the door, and Mr. Fleisher said, 'tell her to come in.’ I went in and he closed the door behind me, and Mr. Fleisher and Mr. Monday were in there.” Monday, it appears, was janitor of the building and general utility man. Continuing, the witness said: “Mr. Fleisher, as soon as I got in the door he said, 'Miss Ensminger, how much money have you got in that pocket ?’ I said, 'one dollar and twenty cents; the twenty cents is yours and the dollar is mine.’ And then I started to tell him about where I got the twenty cents and the dollar and everything.

I would go to say he would call me a liar and a thief. And then I told him that the twenty cents was for hair nets and the dollar was money that mother had given me to buy ribbons for the children. It was close to field day, and they had to have the ribbon for Monday morning, and I could hardly tell him, he kept hollering at me so loud and then calling me a damn liar and everything else. He called me a bastard and most everything else lie could think of, and he asked me who my girl friends were, and I told him Miss Mower and Miss Darby, and he said, “Do they steal and lie like you do ?” And I wanted to say no, and he kept hollering at me that I was a thief and every ⁶¹⁷ thing like that, and he asked me what church I went to and I told him St. John’s, and he asked me who my pastor was, and I said Reverend Harms, and he asked me how often I went to Sunday school and I said ‘most every Sunday.’ I said, ‘unless I am sick.’ Then he asked me what kind of hose I had on and I told him lisle.

He said, ‘let me see,’ and sort of leaned over his desk to see, and then said ‘you stole them and you have been stealing’ hose all along. How many pair of hose have you up home that you stole from me ?’ and I said, ‘I haven’t any,’ but he kept saying I was a thief and asked me what else I had up home that I had stolen from him, and I. told him ‘nothing,’ and he kept on calling me a thief. Then ho asked me if I had a pocketbook, and I told him, ‘in my locker.’ He asked me for my key and I told him that I had lost the key or mislaid it at home. I said I didn’t know just where it was, so he asked Mr. Monday to go down and get my pocketbook, and Mr. Monday told him he would not go unless I went along.

So he told me to go down with Mr. Monday, and we went down to the first floor on the elevator, and then we had to go down in the cellar like to the lockers, and Mr. Monday went along down with me and I got the pocketbook out of the locker, and he and I went upstairs on the elevator and we went to Mr. Fleisher’s office, and I handed the pocketbook to Mi’. Fleisher and he opened it and I had $6.21, and there was another piece of paper with a verse on it on one side and my sister’s name on the other, and lie looked at that and he said, ‘you stole this money, too,’ and he asked me where I got the money and I told him that it was my pay for that week, what I had left ■of pay when we was paid on Friday night. * * * While we were down stairs, Mr. Fleisher had taken the $1.20 that I had in my pocket into Mr. Sack’s office — that was another manager — so he went over there and got the $1.20, and he gave me the twenty cents and he said to take it down and ring it up on the cash register, and he said ‘here is the dollar, it isn’t yours, but I will give it to you,’ and T said, ‘all ⁶¹⁸ right’ and he said, ‘go over in the lavatory in the alteration room and wash your face and don’t tell anybody anything about it. Just go down and ring up the money and fix up your slips.’ Then he asked me if I was coming back on Monday morning, and I said I didn’t know.” She further testified, that Eleisher said to her in his office, “Do you know what I could do with yon ? I could have you arrested.” That it was over a half hour from the time she went to Eleisher’s office until he said, “now you can go”; that while she was in the office she was crying; that she was scared and afraid she would be arrested or “something like that”; that Monday was standing over at