Great Atlantic & Pacific Tea Co. v. Majure

Appellant company operates a large number of grocery stores throughout the country. One of these is at Philadelphia in this state. Appellant Hart was the manager of this store. Appellee was a clerk therein, and had been for several months. The superior or district officers of the company were claiming that there was a shortage in this particular store. On or about November 18, 1934, appellee was discharged, and about ten days or two weeks later four parties went to the store and asked why appellee was discharged, and the manager replied that there was a shortage in the store and that appellee had to go on account of the shortage.

Appellee sued for slander, and, on the trial of the case, the local and district managers both testified exonerating appellee from any responsibility concerning the alleged shortage; the manager denied ever having made any such charge; and it is argued that if such charge were made, it was not slanderous per se and was without malice, all the parties being entirely friendly. Words imputing a want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, or business are slanderous per se. Farley v. Bufkin, 159 Miss. 350, 355, 132 So. 86. A clerk in a mercantile store is within this definition; and when only one clerk in a particular store has been discharged, a statement that he was discharged because of a shortage in the store is equivalent to an assertion that he was the particular person responsible for the shortage. And the shortage need not be one involving a criminal offense, as appellant has so earnestly argued. It is sufficient when a profession, trade, or business is concerned that the charge imports an unfitness in capacity. And when a party denies having uttered the slander, proof that he did, when taken in connection with the fact that no effort is made to prove the truth of the utterance, is sufficient evidence of malice to go to the jury. Louisiana Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296. And particularly so in this case, because the jury was justified in finding from the evidence that the shortage, not at any time large, was that of the manager himself and that he was making the charge against appellee to distract attention from himself. The liability of the manager personally is entirely clear, and the judgment as to him is affirmed.

After mature consideration, we have concluded that the appellant tea company is not liable. Taking the proof in behalf of appellee, plaintiff, as entirely true, as is proper because of the verdict, this proof is that the discharge of appellee had occurred about ten days or two weeks before the uttering of the alleged slander, and that appellee's discharge had for and throughout said twelve days been a completed and closed incident, so far as Hart's legitimate official duties thereinabout were concerned. Strickland v. S.H. Kress Co., 183 N.C. 534,112 S.E. 30; and see, also, Courtney v. Am. R. Exp. Co., 120 S.C. 511,113 S.E. 332, 24 A.L.R. 128. The alleged slander was not so closely connected with the discharge in point of time that it may be said to be "a part of the res gestae pertaining to the discharge." New Orleans Great Northern Railroad Co. v. Frazer, 158 Miss. 407, 421, 130 So. 493, 497; Scott-Burr Stores v. Edgar (Miss.), 165 So. 623.

So far as the record shows, appellee had no contract with the appellant company for any fixed period or term of employment. It was therefore within the lawful right of appellant company to discharge appellee at any time it chose to do so, and for any reason it might think sufficient, or even for no reason at all. And having that lawful right, it was none of the lawful business of any third person as to why the discharge was made, and, consequently, was of a matter about which appellant company owed no duty whatever to give any information to any third person.

And since the incident of discharge was of a matter which the corporation was under no duty, and had no occasion in the furtherance of its business, to discuss with third persons, it must logically follow that any agent or employee of the corporation, in discussing it with any third person, was acting outside of and beyond any duties owed by the corporation and beyond that which was in the furtherance of its business, and therefore was beyond and outside of the duties which the employee or agent owed to the corporation to do, and for the same reason was outside of and beyond any duties which the employee or agent was impliedly authorized to perform for the corporation.

It must follow upon equal legal logic that when the agent, Hart, discussed this matter with outside parties, his actions were purely voluntary on his part, and had nothing actually to do with his employment, and whether his statements were false or slanderous did not in a legal sense concern the master. In other words, the agent was not about the master's business when he uttered the words imputed to him. See Moore Stave Co. v. Wells, 111 Miss. 796, 797, 72 So. 228. And we are leaving aside that the manager was perhaps serving his own personal interests, as we have heretofore mentioned. The alleged slander was, so far as the corporation was concerned, as if appellee had never been an employee of appellant company, and had never had any business relations with it whatever; and certainly none will contend that because a slander is uttered by a store manager against a particular person having no connection with the business of the corporation, the company is liable. The rule of respondeat superior has no such universal application as that. The case is not nearly so strong against the principal as Craft v. Magnolia Stores, 161 Miss. 756, 138 So. 405, or Martin Bros. v. Murphree, 132 Miss. 509, 96 So. 691.

We are, of course, not holding that merely because an employee has been discharged, and the discharge within itself is a completed event, this will render any slander subsequently uttered by agents of the corporation a purely personal matter of the agent, with no responsibility on the part of the principal, especially when the slander is by a general corporate agent; but a case to come within the rule is when the slander is nevertheless uttered in the furtherance of the master's business, and within the scope of the agent's duties and authority at the time, as is illustrated by the recent case, La. Oil Corp. v. Renno, 173 Miss. 609, 157 So. 705, 98 A.L.R. 1296; but there are no facts here substantially sufficient to bring this case within the rule applied in the Renno Case, and those of similar principle.

It is urged that the jury was authorized under the evidence to infer that the slander was uttered in the furtherance of the business of the master, in that the slander was done to prevent appellee from obtaining employment in a competitive store and from taking away customers to the other store. An argument along this line in its substantial aspects was made in Hand v. Ins. Co. (Miss.), 165 So. 616, but was held by the court not to be sufficient. And it is said that if the friends of appellee were not furnished an explanation for his discharge, they would, in the absence of such explanation, go elsewhere to trade, and that it was for this reason that the slander was uttered. We cannot conceive how a jury of reasonable men would suppose that a slander uttered against a friend of customers would be thought by a sensible person to be a means of holding those friends as customers; and, besides, so far as concerns the argument last stated, the principal ought not to be held to an anticipation of an action on the part of an agent so devoid of common sense as that would be. Compare Hand v. Ins. Co., supra.

Affirmed in part, and in part reversed.