Woolf v. Colonial Stores Inc. , 76 Ga. App. 565 ( 1948 )

1. The motion to dismiss the writ of error is without merit.

2. The petition failed to set out a cause of action against the defendant; and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.

DECIDED FEBRUARY 26, 1948. Oliver Woolf Sr. filed an action for damages against Colonial Stores Incorporated, and alleged substantially as follows: On August 8, 1947, he entered the defendant's store to purchase a can of tobacco. "At the time and place the petitioner was carrying under his arm a package containing a bundle of coins, and after making the purchase of a can of tobacco, started out of the store and had reached the street when an employee of defendant corporation, one John Coleman, accosted petitioner and demanded that he pay for the meat he took belonging to defendant and which he was carrying under his arm, at the same time accusing petitioner of stealing the meat. . . Petitioner endeavored to reason with defendant's agent but to no avail, after which your petitioner was further humiliated and embarrassed before a police officer at the next block, where defendant's agent in front of said officer spoke loud enough so that a number of folks standing by heard defendant's agent accuse petitioner of stealing meat from the said store of defendant corporation . . the said officer finding no evidence of any stolen meat or any property belonging to defendant corporation released said petitioner. . . By reason of the speaking of the false, malicious, and defamatory words aforesaid he has been and is greatly injured in his said good name, reputation, fame and credit, and brought into public scandal, infamy, and contempt, with and among his neighbors. . . At the time and place that the agent of defendant did accuse petitioner of the crime of theft, he was on and about the business of said defendant corporation." The "remarks of defendant's agent were actionable in nature and damaging within themselves;" and "said action on [the] part of defendant's agent has caused him much suffering and mental pain and worry." The prayers of the petitioner were for process and judgment against the defendant.

The defendant demurred generally to the petition on the ground that it failed to set out a cause of action, and also filed special demurrers. The trial judge sustained the general demurrer and dismissed the petition, to which judgment the plaintiff excepted. 1. There is a motion to dismiss the bill of exceptions on the grounds: (1) said bill of exceptions has no entry of service thereon, nor was service waived; (2) the bill of exceptions does not designate who is the plaintiff in error and who is the defendant in error, nor can the same be determined from a reading of the bill of exceptions. The motion to dismiss can not be sustained. There is now an acknowledgment of service on the bill of exceptions by the defendant's attorney. While no plaintiff in error or defendant in error is designated as such in the bill of exceptions, it appears therefrom who was the plaintiff and who was the defendant in the trial court, that the general demurrer to the petition was sustained and the petition dismissed, and that the plaintiff excepted and brought the case to this court. Consequently, it can be determined from a reading of the bill of exceptions who is the plaintiff in error and who is the defendant in error. Joiner v. Singletary, 106 Ga. 257 (1) (32 S.E. 90); Rosenheim Shoe Co. v. Horne, 10 Ga. App. 582 (1) (73 S.E. 953). The motion to dismiss is without merit.

2. The trial judge did not err in sustaining the general demurrer to the petition and in dismissing the plaintiff's action, because the petition shows that it was an action for damages for slander. Paragraph 7 of the petition is as follows: "Plaintiff avers that by reason of the speaking of the false, malicious and defamatory words aforesaid he has been and is greatly injured in his said good name, reputation, fame and credit, and brought into public scandal, infamy, and contempt with and among his neighbors;" and paragraph 12 alleges: "Petitioner shows that said remarks of defendant's agent were actionable in nature and damaging within themselves." Other allegations in the petition tend to indicate that it was based squarely on alleged slanderous words uttered respecting the plaintiff, amounting to a slander, and was not an action "for failure to protect the plaintiff as a customer lawfully upon the defendant's premises from injuries caused by the misconduct of the defendant's employees," for which an action will lie under the rulings in Hazelrigs v. High Company, 49 Ga. App. 866 (176 S.E. 814), and other cases.

This case is controlled by the ruling in Behre v. NationalCash Register Co., 100 Ga. 213 (27 S.E. 986, 62 Am. St. R. 320), that "A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question."

Judgment affirmed, Felton, J., concurs. Sutton, C. J.,concurs specially.