Opinion
30205.
DECIDED JANUARY 5, 1944.
Damages; from Fulton superior court — Judge A. L. Etheridge. May 17, 1943.
Hirsch, Smith, Kilpatrick, Clay Cody, Ernest P. Rogers, Sidney Haskins, for plaintiff in error.
G. Seals Aiken, Ellis McClelland, contra.
1. A corporation is not liable for slander committed by its employees or agents unless the words of defamation are expressly authorized by the corporation.
2. Where one engaged in a retail mercantile business impliedly extends an invitation to the public to trade there, a customer visiting the establishment in response to such invitation is entitled to protection from the tortious mistreatment or misconduct of the employees of the person conducting such business. This protection is required of a corporation as well as a natural person. The fact that such misconduct or mistreatment by the employees contains elements of slander does not relieve the corporation of its duty to protect the invitee, although no recovery can prevail against it for slander, which may be simultaneously involved.
3. The petition sufficiently set forth a cause of action for tortious misconduct on the part of the corporation in its failure to protect the invited customer. The court did not err in overruling the demurrers, both general and special.
DECIDED JANUARY 5, 1944.
The petition of Mrs. W. C. Keys alleged substantially that the defendant, a corporation, conducted a retail mercantile establishment in the City of Atlanta, and that she entered its place of business as a customer for the purpose of making purchases; that she purchased a small article, and passed on to the checking counter on her way out. She placed her shopping bag and the article she had purchased on the counter. The cashier requested her to put the article she had purchased in her shopping bag to save a sack, whereupon she opened the shopping bag for the purpose of putting the article she had purchased into it. There were immediately present and in hearing distance a large number of other customers of the defendant. The defendant's cashier, while in the course of her employment and acting as agent and employee of the defendant, demanded that the plaintiff pay for a pound of lard which she had in her handbag, and which she had purchased from an A. P. store across the street. The plaintiff informed the cashier that she had purchased the lard and other articles from the A. P. store. and exhibited a ticket therefor to the cashier. Nevertheless the cashier contended, in the presence of the other customers, that the plaintiff did not, and that there was no such item on the ticket she exhibited to the cashier. The plaintiff then appealed to the manager of the store for help, telling him that she had purchased the from the A. P. store, and that she was being wrongfully accused. She got no assistance from the manager, whereupon she immediately went across the street to the A. P. store where she had purchased the lard, with a view of having her purchases at the A. P. store verified. As she entered the A. P. store to consult its manager concerning the purchase of the lard, she saw a porter from the defendant's store purchasing lard of the same brand as she was accused of stealing from the defendant's store. She then returned to the defendant's store, and inquired of the manager why he had sent his porter to make the purchase from the A. P. store. He replied that he wanted to protect "his girls." The petition alleged that the accusation which the employees and agents made against her caused her severe mental pain and agony, ruined her good reputation, held her up to scorn and ridicule, and caused the public finger of reproach to be pointed toward her by her neighbors. She further alleged that the accusation was false and unprovoked, and that there was no excuse for the statements and conduct of the defendant's agents. She alleged further that the words were "a slander or oral defamation" by said employees, and that she had been damaged in a large sum. She amended her petition by alleging that "the words which were spoken about her were said . . and the acts specified in connection therewith were done by the defendant's said agents under the express direction and authorization of the defendant corporation."
The defendant demurred generally on the ground that no cause of action was set forth, and specially on the ground (a) that the allegation to the effect that the cashier and manager were employees of the defendant and acting within the scope of their employment was a mere conclusion without any facts upon which to base it; and (b) that the allegation of the amendment to the effect that the cashier and manager were acting in what they said and did, "under the express direction and authorization of the defendant," was a mere conclusion, in that it was not alleged in the amendment or elsewhere, "how, when, or in what manner the defendant directed or authorized the statements alleged as spoken and committed by the alleged agents or servants of defendant." The court overruled the demurrers, and the defendant excepted.
1. It is contended by the defendant that the case is one sounding in slander or oral defamation, and that since it is not alleged in response to its special demurrer, or elsewhere in the petition, that the words spoken were expressly authorized by the proper authorities of the corporation, no cause of action was set out against it. At the outset we concede the correctness of this position, if the allegations of the petition must be construed as one sounding in slander or oral defamation. This principle has been many times ruled. The leading case is Behre v. National Cash Register Co., 100 Ga. 213 ( 27 S.E. 986, 62 Am. St. R. 320), followed by this court in Jackson v. Atlantic Coast Line R. Co., 8 Ga. App. 495 ( 69 S.E. 919), and Headley v. Maxwell Motor Sales Corp., 25 Ga. App. 26 ( 102 S.E. 374), and mentioned approvingly in Sims v. Miller's Inc., 50 Ga. App. 640 ( 179 S.E. 423). See, also, Russell v. Dailey's Inc., 58 Ga. App. 641 ( 199 S.E. 665). However, in Moone v. Smith, 6 Ga. App. 649 ( 65 S.E. 712), this court held that one in the place of business of another by invitation is entitled to protection against the tortious misconduct not only of the employees of the person extending the invitation but also of others who may be therein. It is there held that the duty owed to an invitee is comparable to the duty of a common carrier of passengers, the only difference being in the diligence required. The former is required to exercise extraordinary care to protect, and the latter ordinary care. In Lemaster v. Millers, 33 Ga. App. 451 ( 126 S.E. 875), this court said: "One who maintains a mercantile establishment for the purpose of selling goods owes a duty to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify, and wound the feelings of the customer. . . . A petition as amended which alleges that the plaintiff, while present in the defendant's store as a customer, desiring to make a purchase from the defendant, was, in a loud and angry tone which could be heard by other customers present, falsely and unjustly accused by one of the defendant's clerks of having in a handbag a certain article belonging to the defendant, which charge humiliated and embarrassed the plaintiff, set out a cause of action for a wilful and intentional tort." It is true that neither Moone v. Smith, nor Lemaster v. Millers, supra, were actions against corporations, but the doctrine is announced in both of them. In Hazelrigs v. High Company, 49 Ga. App. 866 ( 176 S.E. 814), this court, citing Moone v. Smith, applied the principle to a corporation under allegations of facts very similar to those in the instant case. In Sims v. Miller's Inc., supra, under allegations substantially the same as in the case at bar, wherein Lemaster v. Millers, Moone v. Smith, and Hazelrigs v. High Co., are cited, this court said: "The allegations in the instant case, as to the actions of the defendant's manager in charge of its business and so acting at the time, bring it within this ruling and the ruling in the 1st paragraph of the decision in Hazelrigs v. High Co., supra, where it was held that a petition with similar averments `alleged a cause of action against the defendant for damages for failure to protect the plaintiff as a customer lawfully upon the defendant's premises from injury caused by the misconduct of the defendant's employees.' . . Under this theory, sufficiently stated by the petition, it was error to dismiss the case upon general demurrer, even though no recovery could be had for the alleged slander." We have read the original records in Hazelrigs v. High Co., and Sims v. Miller's Inc., and we fail to detect any material difference between the allegations of the petitions in those cases and the allegations in the case at bar. Therefore it would seem that when, as here, a corporation engaged in the retail mercantile business impliedly extends an invitation to the public to trade there, the law requires of such corporation the same degree of diligence to protect its customers from the tortious misconduct of its employees as it requires of a natural person to protect an invitee from the misconduct of its agents and employees acting about their master's business within the scope of their employment. The misconduct may involve elements of slander, but the gist of the right of recovery is not based on slander, but is based on the right of the invitee to be protected from any tortious misconduct on the part of the corporation from its agents and employees acting within the scope of their duties and about their master's business. In all of the cases cited by the plaintiff in error none of them involve the principle of protection which the law throws around an invitee, save one. That one is Russell v. Dailey's Inc., supra. We have read the original record in that case, and it may be distinguished from Hazelrigs v. High Co. and Sims v. Miller's Inc., supra (older decisions of this court), in that the allegations, according to their more circumscribed import, denominate an action sounding exclusively for slander. Be this as it may, we are required by the law to follow the older decisions as precedents. As to the other cases cited by the plaintiff in error, Behre v. National Cash Register Co., Jackson v. Atlantic Coast Line R. Co., Headley v. Maxwell Motor Sales Corp., supra, and Ivins v. Louisville Nashville R. Co., 37 Ga. App. 684 (3) ( 141 S.E. 423), by reference to the original records in those cases we find that they do not involve the question of the duty owing an invitee.
3. We construe the allegations of the petition in the instant case as sufficient to bring it within the doctrine of the duty owing an invitee. We think this theory is sufficiently stated by the petition, although there can be no recovery against the corporation for slander, even though oral defamation might be involved as a simultaneous wrong. It therefore follows that if we are correct in what we have said, it was not necessary to allege or prove that the words alleged to have been spoken by the agents of the corporation were expressly authorized by the corporation, or ratified by it. But the allegation that the manager and the cashier were agents and employees acting within the scope of their authority, and, at the time, engaged in their master's business, are sufficient to withstand the demurrers to the petition. The court did not err in overruling the demurrers.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.