Opinion
31474.
DECIDED FEBRUARY 20, 1947.
Action for damages; from Floyd Superior Court — Judge Porter. October 14, 1946.
James Maddox, for plaintiff.
Robert M. Wood, Lanham, Parker Clary, for defendants.
1. A petition seeking the recovery of damages against a defendant corporation for slanderous words used by an agent, superior in authority to another agent working under him, is fatally defective unless it affirmatively appears from the allegations of the petition that the employee using such words was expressly directed or authorized by the corporation to speak the words of which complaint is made. This is true, notwithstanding that the employee speaking the words to the other employee is at the time engaged in the business of the corporation.
2. Where the defamatory words used do not charge the commission of a crime and are not for any other reason slanderous per se, and no special damage is alleged, no cause of action is set forth.
DECIDED FEBRUARY 20, 1947.
A. L. Braden brought a petition to recover damages against C. R. Baugham, hereinafter called the defendant when referred to singularly, and Sears, Roebuck Co., hereinafter called the defendant company when referred to singularly, and when referred to jointly we will call them the defendants. The defendants filed separate demurrers to the petition which were sustained, and the plaintiff excepted.
The petition alleges that the plaintiff was employed by the defendant company in its mercantile establishment at Rome, Georgia; that the defendant Baugham was manager, and that the plaintiff was a salesman in the store. It is alleged that while the plaintiff was about his duties waiting on a customer whose name is unknown to the plaintiff, the defendant Baugham approached the plaintiff "and in a very abrupt and loud voice" said to the plaintiff, "what was that you put in your pocket," and at the same time pointed to the petitioner's coat pocket. The defendant Baugham meant thereby that the petitioner had taken some article of merchandise belonging to the defendant company with the intention of stealing it. It is further alleged that at the time the defendant issued coupons to its employees for certain sales made. These coupons were good for articles of merchandise. The coupons were issued in the office of the store and were delivered to the salesmen entitled to them. Just prior to the time the above-quoted words were spoken by the defendant Baugham to the plaintiff a lady employee of the company had handed to the plaintiff certain of these coupons which he had placed in his pocket. It is further alleged that the only things the plaintiff had in his pocket at the time the quoted words were spoken were a small box of matches and the coupons; that he had taken no article or thing belonging to the defendant company. It is alleged that the effect of the quoted statement and the action on the part of the defendant Baugham was to charge the plaintiff with larceny, which is a criminal offense under the Georgia laws. It is further alleged that thereafter the plaintiff asked the defendant Baugham what he meant by using the quoted words to him. The defendant Baugham thereupon told the plaintiff to come with him to the office. When in the office the plaintiff again asked the defendant Baugham what he meant by the quoted words, whereupon the defendant Baugham stated that if the plaintiff desired to make an issue of the matter and if he did the plaintiff was discharged. The plaintiff again stated that he had taken nothing belonging to the defendant company. The plaintiff returned to work. Approximately three weeks thereafter he was discharged by the defendant without cause. The suit was for general damages in the sum of $5000.
1. We will inquire first as to whether the petition set out a cause of action against the defendant company. The defendant company is not liable under any construction of the words used. This is true because before the defendant company could be held liable, even if the words spoken were slanderous per se, it must affirmatively appear from the allegations of the petition that the defendant Baugham was expressly directed or authorized by the defendant company to speak the words of which complaint is made. There is no such allegation in the petition. Cochran v. Sears, Roebuck Company, 72 Ga. App. 458 ( 34 S.E.2d 296); Sinclair Refining Co. v. Meek, 62 Ga. App. 850 ( 10 S.E.2d 76); Russell v. Dailey's Inc., 58 Ga. App. 641 ( 199 S.E. 665); Headley v. Maxwell Motor Sales Corp., 25 Ga. App. 26 ( 102 S.E. 374); Jackson v. Atlantic Coast Line R. Co., 8 Ga. App. 495 ( 69 S.E. 919).
The court did not err in dismissing the petition as against the defendant company.
2. Next we will inquire whether the allegations of the petition allege a cause of action against the defendant Baugham. It clearly appears from the allegations of the petition that the words alleged to have been used did not per se charge the plaintiff with the commission of a crime. Code, § 105-702 defines slander or oral defamation. Under this section there are four instances in which a cause of action may be maintained: (1) Where the words impute a crime per se punishable by law; (2) Where one is charged with having some contagious disorder or being guilty of some debasing act which may exclude from society; (3) Charges made against another in reference to his trade, office or profession calculated to injure him therein; (4) Using disparaging words productive of special damage flowing naturally therefrom.
The Code section further provides that in the first three instances damage is inferred. But in the fourth special damage is essential to support the action. As we construe the petition, it is sought to ground the action on the fourth provision of the Code section above referred to. Therefore, the petition must fall because no special damage is alleged. See, in this connection, Whitley v. Newman, 9 Ga. App. 89 (7) ( 70 S.E. 686); Morris v. Evans, 22 Ga. App. 11 ( 95 S.E. 385); Hardeman v. Sinclair Refining Co., 41 Ga. App. 315 ( 152 S.E. 854). In the case of Christian v. Ransom, 52 Ga. App. 218 ( 183 S.E. 89), the court said: "As the alleged defamatory words did not charge the commission of a crime and were not for any other reason slanderous per se, and as no special damage was alleged, a cause of action was not set forth." In the body of the opinion of that case will be found an elaborate discussion of the law applicable to the question under consideration in the instant case.
Counsel for the plaintiff in his brief call our attention to the cases of Williams v. Equitable Credit Co., 33 Ga. App. 441 ( 126 S.E. 855), and Holmes v. Clisby, 118 Ga. 820 ( 45 S.E. 684). The principles of law applicable to these two cases are not applicable to the case at bar. Both of those cases deal with actions for libel. Actions for libel are dealt with under Code, § 105-701. Actions for slander are covered by the Code, § 105-702. The court did not err in sustaining the demurrer of the defendant Baugham and dismissing the petition as to him also.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.