A Question of Malice
Roger P. Drumson, senior partner of Drumson, Holbret, and Drumson, finished reading the complaint, then looked up over his glasses at Bertha Cool. “As I understand it, Mrs. Cool, you were employed to find out who wrote these letters. You had reasonable grounds to believe the plaintiff wrote them?”
“Yes.”
“That’s good. V ery good! Now just what were these grounds?”
“I knew they had been written by a first-rate typist on a portable. I knew Imogene Dearborne had actually written a message to her employer on this same typewriter.”
“How did you know that?”
“By comparing the typewriting.”
“No, no. I mean, how did you know she had written it on that same typewriter?”
“She admitted she had.”
“In the presence of witnesses?”
“Yes.”
“Before you made this accusation?”
“Sure. I made certain of my grounds before I exploded my bombshell.”
Drumson beamed at Bertha. “Very, very clever, Mrs. Cool. Now, as I understand it, you were giving this information in the highest good faith to interested parties, is that right?”
“That’s right.”
“Splendid!”
Drumson returned to a perusal of the complaint, frowned, looked accusingly up at Bertha. “Did you call her a twerp, Mrs. Cool?”
“Yes.”
“That’s bad.”
“Why?”
“It implies malice.”
“What the hell’s that got to do with it?”
Drumson returned to a perusal of the complaint, frowned, “You see, Mrs. Cool, the law provides certain immunities to a person who acts in good faith and without malice, as a reasonable person might do. In other words, certain communications are known, in the eyes of the law, as privileged communications; but in order to take advantage of the privileged communication provisions of the law, a person must show that everything he said was said in good faith, and without malice.”
“Now, as I understand the situation, you are a private detective. You had been employed by Everett Belder, among other things, to ferret out the person who was responsible for writing certain letters. You had reasonable grounds to make you believe that this secretary was the person in question. It was a mistake, but an honest mistake which any person might have made.”
Bertha’s nod was eager.
“So,” Drumson went on, “your communication was privileged, provided it was made without malice, Mrs. Cool.”
“Well, it was. I didn’t even know the girl.”
“Then why did you call her a twerp?”
“It’s just an expression.”
Drumson shook his head in mild rebuke, and said, “Tut tut!”
“Then I had a right to act on that assumption,” Bertha said. “She can’t stick me. Is that right?”
“Well, now, Mrs. Cool, that also depends. Your assumption of her guilt must have been a reasonable assumption, predicated upon an investigation of all the evidence. I believe you stated that a certain Sally Brentner turned out to be the guilty party?”
“Yes.”
“How did you discover that?”
“The police discovered it,” Bertha admitted with reluctance. “How?”
“The second letter showed that the woman must have been able to see what was going on in Belder’s office. Police decided that she must have been in an office across the street looking through the window into Belder’s office. The police stood in Belder’s office, looked across the street, and found there were only one or two offices the person could possibly have used for such a purpose. They knew the time of day they wanted to cover. She’s been a patient in a dentist chair.”
Drumson frowned. “But why didn’t you do that, Mrs. Cool? It seems to me it was the most logical method of trapping the guilty person.”
Bertha said, “I thought I didn’t have to.”
“Why?”
“I thought I had all the evidence I needed.”
“Then you deliberately overlooked this bit of evidence?”
“Well, I don’t know that there was anything deliberate about.”
“In other words,” Drumson said, “it just hadn’t occurred to you at the time, is that it?”
“Well,” Bertha said, “it—” She hesitated.
“Come, come,” Drumson said, “you must tell your lawyer all the facts of the case, Mrs. Cool, or he cannot work to your best advantage.”
“Well,” Bertha blurted, “Sergeant Sellers kept wanting to go at it that way, but I told him there wasn’t any need to.”
Drumson’s voice held shocked incredulity. “My dear Mrs. Cool! Do you mean to say that the police suggested to you that this logical, this perfectly simple, this very feasible method of locating the person you wanted should be followed, and that you not only refused to conduct such an investigation, but dissuaded them from doing so, and then made this charge against this Imogene Dearborne?”
Bertha said, “It sounds like hell when you put it that way.”
“It’s the way the attorney for the other side will put it, Mrs. Cool.”
“Well, I guess that’s about right.”
“That’s bad, Mrs. Cool, very bad.”
“Why?”
“It means that you refused to make an investigation. It means that you had no reasonable grounds for making the accusation you did. That has a tendency to imply malice, and that, in turn, robs you of your privileged immunity.”
“Well, you’re making it sound as though you were the lawyer for the other side.”
Drumson smiled. “Just wait until you actually hear the lawyer on the other side. Now that expression of opprobrium— What was it? Let’s see... Oh, yes, a twirp — a twirp, Mrs. Cool. Why on earth did you call her that?”
Bertha flushed “Because it’s the mildest term you could use in describing the mealy mouthed little bit—”
“Mrs. Cool!” Drumson exploded.
Bertha lapsed into silence.
“Mrs. Cool, the question of malice is one of the most important in this whole case. If you are to win this case, you’ll have to establish that you held no malice toward the plaintiff, none whatever. In the future, refer to the plaintiff in this action as a very estimable young woman of unimpeachable moral character. She is, perhaps, mistaken, but as far as her character is concerned, she is a paragon of virtue. Otherwise, Mrs. Cool, it — is — going — to — cost — you — money. Do you understand?”
“Well, when I’m talking to you, can’t I tell the truth?”
“When you are talking to me, when you are talking to friends, even when you are thinking, you must refer to this young woman only in words that can be repeated anywhere. Can’t you see, Mrs. Cool, that your thoughts as well as your conversation are habit-forming patterns? If you use derogatory expressions in your thoughts, or in some of your conversations, those words will unconsciously slip out at inopportune times. Now, repeat after me, ‘This young woman is a very estimable young woman.’ ”
Bertha Cool said, with evident reluctance, “Goddamn her, she’s a very estimable young woman.”
“And see that you always so refer to her,” Drumson warned.
“I’ll try. If it’ll save me money, I’ll try.”
“Now, what’s this about witnesses being present?”
“Everett Belder and—”
“Now, just a moment. Mr. Belder was your employer?”
“My client.”
“I see. Pardon me, your client. And who else was present?”
“Sergeant Sellers.”
“He was from the police?”
“From headquarters, that’s right.”
Drumson beamed. “I think that does it very nicely, Mrs. Cool. There were no other persons there except the plaintiff?”
“And this Carlotta Goldring. She’s Belder’s sister-in-law.”
“And was she one of your clients?”
“No.”
“What was she doing there?”
“She just opened the door and walked in.”
“And do you mean to say that you made this accusation in front of Carlotta Goldring?”
“Well, I don’t know just how much I said before she came in, and how much I said afterwards.”
“But, Mrs. Cool, why didn’t you wait until this young woman had left the office. If she was virtually a stranger to you, it seems that reasonable prudence would have caused you to withhold any accusation while she was there. We can’t possibly claim a privileged communication as far as this Carlotta Goldring is concerned.”
Bertha said angrily, “I’ll tell you why I didn’t do it; because I was trying to carry on my business. That’s the trouble with you lawyers. All you think about is lawsuits. If a person tried to carry on business so he’d be within the letter of the law, he’d never get anything done.”
Drumson shook his head chidingly. “I’m sorry, Mrs. Cool, but you’ve been indiscreet. You can’t minimize that indiscretion by abusing the law or blaming the lawyers. This is going to be a very difficult action to defend. I’ll want five hundred dollars as a retainer, then we’ll see what can be done. That retainer will carry the case through the pleadings and up to the time of trial. At that time you can make an additional remuneration in case we haven’t been able to get the case disposed of before—”
“Five hundred dollars!” Bertha all but screamed.
“That’s right, Mrs. Cool.”
“Why, fry me for an oyster! Five — hundred — dollars!”
“ Five hundred dollars, Mrs. Cool.”
“What the hell are you talking about? I didn’t make but fifty dollars out of the whole case.”
“I’m afraid you don’t understand, Mrs. Cool. It isn’t what you have made out of the employment that counts, it’s the fact that right now,” and Drumson tapped the papers on his desk with a solemn forefinger, “you have a potential liability of one hundred thousand dollars chalked up against you in a court of justice. My associates and I may be able to beat this case. I can’t tell, but—”
Bertha got up from her chair, reached over and pulled the papers out from under the lawyer’s hand.
“You’re crazy. I’m not going to pay any five hundred dollars.”
“But my dear Mrs. Cool, if you don’t do something within ten days of the time this paper was served on you, you’ll—”
“How do you go about denying you owe anything like this?” Bertha asked.
“You file what we lawyers call an ‘answer,’ denying the charges contained in the complaint.”
“How much will you charge me to drew me one of these answers?”
“Do you mean just to draw up an answer?”
“Yes.”
“Well — I wouldn’t advise you to do that, Mrs. Cool.”
“Why not?”
“Well, there are certain things about the complaint which impressed me as being rather ambiguous. The document quite evidently was hastily drawn. I think it is subject to a special demurrer, and perhaps to a general demurrer as well.”
“What’s a demurrer?”
“That’s another pleading — a paper filed in court — in which you point out defects in the complaint.”
“And what happens after you file that?”
“You argue it.”
“Is the other lawyer there?”
“Oh, yes, naturally.”
“Then what happens?”
“If your point is well taken, the judge sustains the demurrer.”
“And that means you win the lawsuit?”
“Oh, no. Then the other side is given ten days to amend the complaint.”
“So that it makes it a better complaint?”
“In a way, yes. That’s the layman’s way of expressing it.”
“I suppose all this argument costs money.”
“Naturally, I have to be compensated for my time. That was why I told you five hundred dollars as a retainer would take the case through the stage of pleadings and up to—”
“Why in hell,” Bertha interrupted, “should I pay a lawyer five hundred dollars to go into court to tell the other lawyer how to make his complaint correct?”
“You don’t understand, Mrs. Cool. You persist in looking at it as a layman. There is a tactical advantage in having a demurrer sustained.”
“What advantage? Where does it get you?”
“You gain time.”
“What good does it do to gain time?”
“Why, you’ve postponed the matter. You’ve gained time.”
“And what do you do with this time when you’ve gained it?”
Drumson’s smile tried to be patronizing, but there was a vague uneasiness in his manner as he faced Bertha’s glittering eyes. “My dear Mrs. Cool, you’re letting yourself get all worked up. After all, you’re merely a layman. These matters—”
“What the hell do you do with the time when you’ve gained it?” Bertha interrupted in a voice which stridently demanded the conversational right of way.
“Why, we work on your case, study up on it.”
“And I pay for all the time you put in?”
“Naturally I have to be compensated—”
“So I pay you to tell the other lawyer how to make a better case so you can gain time to charge me more for putting in more time on my case. To hell with that stuff. Don’t you know enough law to know how to try this lawsuit right now?”
“Of course. If I—”
“Then what the hell do you want to put in more time on more study for? If you don’t know how to handle this case say so, and I’ll get someone who does.”
“My dear Mrs. Cool! You simply—”
“The hell with that stuff,” Bertha interrupted. “I don’t want any demurrers. I don’t want to pay fancy prices to gain time I’m going to have to pay for. I simply want to file an answer telling this goddamned little twerp where she gets off.”
“My dear Mrs. Cool! Please! I ask you as your attorney, don’t keep referring to the plaintiff as a twerp.”
“She’s a damned gold-digging little bitch,” Bertha said, angrily raising her voice. “She’s a mealy-mouthed hypocrite.”
“Mrs. Cool! Mrs. Cool! You’ll ruin your chances of defending this lawsuit.”
“You know what she is as well as I do. She—”
“Mrs. Cool! Please. N ow I am going to tell you something once and for all. If you even think of the plaintiff in this action in that way, you’re going to lose your temper in court and throw your entire case out of the window. Those words show malice. I instruct you as your lawyer, I warn you, that you must studiously make a habit of referring to this young woman as a thoroughly estimable young lady, otherwise you’re going to regret it.”
“You mean I’ve got to let her throw this action in my face and still like her?”
“She’s misguided. She took offence where none was meant. She’s high-strung and her lawyers have taken advantage of an unusual situation to try and collect an excessive amount. But the young woman in the case, the plaintiff herself is, so far as you know, a thoroughly estimable young woman, and you must school yourself to refer to her as such.”
Bertha took a deep breath.
“How much?”
“For just drawing an answer?”
“Yes.”
“Well, I would say that in order to do that we’d need to have a preliminary discussion as to the facts of the case, and—”
“How much?”
“Oh, say seventy-five dollars.”
“For just drawing an answer? Why I’ll bet I could get somebody to just draw an answer for—”
“But we’d have to discuss the facts with you first.”
“Facts nothing,” Bertha said. “All I want is an answer that will call this — this estimable young woman a goddamned liar. An answer that will claim that she didn’t get fired because of anything I said, that whatever I said was what you call a privileged communication, and all that stuff.”
“Well,” Drumson said with obvious reluctance, “I guess perhaps, under those circumstances, a charge of twenty-five dollars... But you understand, Mrs. Cool, we wouldn’t accept any responsibility for anything in connection with the case. We wouldn’t want our name to appear on the pleading. It would simply be an answer that we would draw, and you could sign, appearing in propria persona.”
“ What does that mean?” Bertha asked.
“That’s a legal expression that means a person is appearing without a lawyer. That is, that the party filing the pleading is acting as his own lawyer.”
Bertha said, “That’s what I want. Draw up the answer. I’ll sign it myself, and appear myself, representing myself. And I want to get it by Monday morning. I’ll file that and have it off my mind.”
Drumson watched her leave the office. Then with a sigh he pressed the button which summoned his stenographer.