Simpson v. Jacobs Pharmacy Co. Inc. , 76 Ga. App. 232 ( 1947 )

1. When a corporation, engaged in the retail pharmaceutical business, impliedly extends an invitation to the public to trade in its store, it is required to exercise the same degree of diligence to protect its customers from the tortious misconduct of its employees as an individual must exercise to protect an invitee from the misconduct of such individual's agents and employees acting about their master's business and within the scope of their employment, though such misconduct may involve elements of slander.

(a) Accordingly, in an action for damages against the defendant corporation caused by false accusations of the clerk and manager of one of the defendant's retail stores, that the plaintiff, who was a customer in said store, was attempting to cheat and swindle the store out of a sum of money by falsely representing that she had given the clerk a $10 bill from which to obtain the sum of 39 cents, this being the purchase price of an article bought by the plaintiff in said store, and where the petition also alleged that the plaintiff was assaulted by one of the defendant's employees and was otherwise humiliated and embarrassed by such employees in the presence of other customers in said store, the allegations of the petition were sufficient, as against the general demurrers thereto, to set out a cause of action against the defendant corporation.

2. Since the judgment excepted to specifically provides that the trial judge was dealing only with the grounds of general demurrer, whether or not the petition is subject to the other grounds of demurrer, that it was multifarious and duplicitous, which are grounds of special demurrer, is not considered.

DECIDED DECEMBER 3, 1947. Mrs. Laura M. Simpson sued Jacobs Pharmacy Company Incorporated, in the Superior Court of Fulton County. Her petition alleged, in substance, that she entered one of the retail stores of the defendant as an invitee for the purpose of purchasing a bottle of antiseptic listerine, which the defendant was offering for sale for 39 cents; that she purchased the merchandise at one of the counters in the store, which was then and there in charge of an employee of the defendant; that the plaintiff tendered a $10 bill to said employee in payment of her purchase, which the employee accepted and went to the cash register to make the necessary change; that the employee returned and handed to the plaintiff the sum of 57 cents as her change, and the plaintiff called to the employee's attention that she had handed her a $10 bill and that there was a mistake in the amount of change returned to her; that the employee disputed the statement of the plaintiff and denied that the plaintiff had given her a $10 bill and spoke loudly, arrogantly, harshly and in an otherwise very rude manner to the plaintiff in the presence of the other customers in said store and continued to insult the plaintiff and suddenly and without warning and with force and violence pushed and brushed the plaintiff aside with her hands; that immediately thereafter, another servant and employee of the defendant, a Dr. Brown, who was in charge of said retail store, came up and asked what was the matter and the defendant's clerk accused the plaintiff of trying to cheat and swindle the store of some money, whereupon the plaintiff explained the facts to Dr. Brown and told him he could verify the facts himself about the $10 bill; that he checked one of the cash registers of the store but did not check the one at which the clerk had changed the bill, and refused to check this cash register; that he used harsh and arrogant language to the plaintiff and instead of checking the second cash register, as the plaintiff had requested, he accused her of being a cheater and a swindler; that the plaintiff suffered humiliation by the unprovoked and unjustifiable assault upon her and the opprobrious, insulting and abusive language used towards her in the presence of the other customers in said store; that she was accused, in the presence of the other customers, of trying to cheat and swindle the defendant out of $9.61; that the defendant's employees were acting within the scope of their employment and about their master's business at said time; that the plaintiff suffered a nervous and mental shock and agony and was taken sick and greatly upset physically and mentally for several days, during which time she was nauseated, suffered headaches and was confined to her bed under a nervous breakdown; that she was unable to take care of her household duties and to attend to her children for two weeks and was compelled to employ a domestic [servant] to take care of her household duties; that the plaintiff did not provoke or contribute to her injuries and could not, by the exercise of diligence and care have prevented the abuse, humiliation, insult and injury above set out; that the plaintiff sought compensation for her actual damages and also, by reason of aggravations in the act and intention of the defendant, punitive or exemplary damages from the defendant. The prayers of the petition were for process and judgment against the defendant.

The defendant demurred generally and specially to the petition. The trial judge sustained the general demurrers and dismissed the action, and the plaintiff excepted. 1. Under the allegations of the petition, the plaintiff was an invitee in the defendant's retail store, where the defendant's servants and employees, in the course of their employment with the defendant, falsely accused the plaintiff of the criminal offense of attempting to cheat and swindle the defendant of a sum of money and otherwise insulted and humiliated her in the presence of the other customers in said store. It was held in Colonial StoresIncorporated v. Coker, 74 Ga. App. 264 (1, a) (39 S.E.2d 429) : "When a corporation, engaged in the retail mercantile business, impliedly extends an invitation to the public to trade in its store, it is required to exercise the same degree of diligence to protect its customers from the tortious misconduct of its employees as an individual must exercise to protect an invitee from the misconduct of such individual's agents and employees acting about their master's business and within the scope of their employment, though such misconduct of the corporation's agents and employees may involve elements of slander. Accordingly, in an action against a corporation for damages caused by false accusations of the defendant retail store's cashier and manager, that the plaintiff, who was a customer in said store, had obtained a box of dried milk for which she refused to pay, thus intimating that the plaintiff was a cheat, swindler, and thief, the allegations of the petition are sufficient, as against the demurrers of the defendant, to set out a cause of action against the defendant corporation." Also, seeSouthern Grocery Stores v. Keys, 70 Ga. App. 473 (28 S.E.2d, 581); Moone v. Smith, 6 Ga. App. 649 (65 S.E. 712);Lemaster v. Millers, 33 Ga. App. 451 (126 S.E. 875); Hazelrigs v. High Company, 49 Ga. App. 866 (176 S.E. 814);Sims v. Millers, 50 Ga. App. 640 (179 S.E. 423). Attempting to cheat and swindle another of money or property of value by false representations is an indictable offense under the laws of this State. In this connection, see Code, Chapter 26-74; Code, § 27-2507; DeKrasner v. State, 54 Ga. App. 41 (187 S.E. 402), and citations. It was further alleged in the petition that the servant and employee of the defendant assaulted the plaintiff by pushing and brushing her aside with her hands and otherwise humiliated and embarrassed her in the presence of the other customers in said store. Under the allegations of the petition, a cause of action was stated, and the trial judge erred in sustaining the general demurrers and dismissing the action.

While a corporation is not liable for slanderous and defamatory utterances by one of its agents, where not ordered and directed by it, even though spoken by such agent within the scope of his duties and for the benefit of the corporation (Behre v.National Cash Register Co., 100 Ga. 213, 27 S.E. 986, 62 Am. St. 320); Ivins v. L. N. R. Co., 37 Ga. App. 684, 141 S.E. 423, Russell v. Dailey's Inc., 58 Ga. App. 641, 199 S.E. 665), the present case is not one against the corporation for slander, but is one against the corporation for the failure to exercise due care to protect its customers from the tortious misconduct of its servants and employees acting within the scope of and about their master's business. The fact that such misconduct may involve elements of slander does not prevent the plaintiff from having a cause of action against the corporation for breach of its duty towards her as an invitee on its premises. In this connection, see Southern Grocery Stores Inc. v. Keys, supra; Colonial Stores Incorporated v. Coker, supra, and citations. The cases cited and relied on by the defendant in error are distinguishable on their facts from the present case and the rulings therein made do not authorize or require a different ruling in this case from the one made herein.

2. The plaintiff in error contends in her brief filed in this court that the trial judge passed upon certain grounds of the defendant's demurrer which attacked the petition upon the grounds that it was multifarious and duplicitous. We do not think the judgment of the trial judge excepted to dealt with these grounds of the demurrer. A general demurrer to a petition does not raise questions as to multifariousness, duplicity, or misjoinder of causes of action, or as to nonjoinder or misjoinder of parties, but such questions can be raised only by special demurrer. Grant v. Hart, 192 Ga. 153 (14 S.E.2d 860). "Multifariousness, duplicity, or misjoinder is ground for special demurrer." Tingle v. Maddox, 186 Ga. 757 (1) (198 S.E. 722). In his judgment, the trial judge expressly stated that he was sustaining the general grounds of the demurrer and that the special grounds were not passed upon. Accordingly, the contention of counsel for the plaintiff in error, that the trial judge passed on those grounds of the demurrer attacking the petition on the grounds of duplicity and multifariousness, can not be legally sustained.

3. The petition set out a cause of action, and the trial judge erred in sustaining the general demurrers thereto and dismissing the action.

Judgment reversed. Felton and Parker, JJ., concur.