Abner v. W. T. Grant Co., 40680

• Decision Date: 16 October 1964
• Docket Number: No. 3,No. 40680,40680,3
• Citation: 139 S.E.2d 408,110 Ga.App. 592
• Parties: Charlotte ABNER v. W. T. GRANT COMPANY
• Court: Georgia Court of Appeals

Page 408

139 S.E.2d 408

110 Ga.App. 592

Charlotte ABNER v. W. T. GRANT COMPANY.

No. 40680.

Court of Appeals of Georgia, Division No. 3.

Oct. 16, 1964.

Syllabus by the Court

The trial court in this case properly granted the defendant's motion for summary judgment and entered judgment in the defendant's favor.

The plaintiff sued the W. T. Grant Co., a corporation engaged in operating a retail department store, for false imprisonment allegedly committed by the defendant's agent. In its answer the defendant denied all the material allegations of the petition. Subsequently the defendant took plaintiff's deposition, and in due course filed a motion for summary judgment. Following a hearing on the motion, the trial judge entered an order granting it. The plaintiff excepts to this judgment of the trial court granting the defendant's motion for summary judgment.

Insofar as relevant to the decision here the petition alleges that the defendant's agent 'with force of arms * * * wantonly and wilfully laid hold of the plaintiff and * * * in plain view of divers persons, stopped plaintiff as she left the store and * * * accused plaintiff with having stolen goods in her possession * * * did accuse plaintiff of having taken articles [from defendant's store] * * * without paying for them' and that 'plaintiff was restrained from leaving the front of the [store] * * * and her pocketbook was searched.' The defendant in its answer denied all of the material allegations of the petition.

The evidence shows: That plaintiff, Charlotte Abner, along with two of her aunts, Mrs. Lottie Cassel and Mrs. Ruth Boone, Sr., on or about April 20th, 1963, at the approximate hour of one o'clock p. m., entered defendant in error's store (W. T. Grant Company). They spent about fifteen minutes in the store. They examined some handbags, one of the aunts picking up a bag and inspecting it. They did not carry any of the bags away from the area. They then left the store.

The plaintiff, Mrs. Abner, testified specifically: that when she was about five feet out of the store and on the public sidewalk the agent 'tapped' plaintiff on the shoulder 'just to attract her attention'; there was no other touching of her person; the agent asked her if she had bought anything in the store; she answered, "No, why?' He said, 'What about that bag in your hand,' and just pointed his finger at my handbag. I just held it up and said, 'This is mine.' He didn't say a word, he just kept looking at it. I opened it and said, 'See', because I had my usual things in it. As I did that, he just give me a real dirty look and turned around, didn't say a word, and walked back in the store.' When asked if that was everything that transpired, plaintiff answered, 'Yes.' The agent did not tell her that she could not leave.

Gower, Llorens & Henritze, Walter M. Henritze, Jr., Atlanta, for plaintiff in error.

Smith, Ringel, Martin, Ansley & Carr, H. A. Stephens, Jr., Atlanta, for defendant in error.

BELL, Presiding Judge.

1. There is some basic disagreement among the several judges of this court on the question whether an invitee, after departing the invitor's premises, cases to be an invitee sufficiently to relieve the employer from liability to the customer for slander occurring by the employee's use of insulting and approbrious words tending to humiliate and mortify the customer or wound his feelings. See Zayre of Atlanta, Inc. v. Sharpton, 110 Ga.App. 587, 139 S.E.2d 339, Greenfield v. Colonial Stores, Inc., 110 Ga.App. 572, 139 S.E.2d 403, and the special concurrences of Judges Jordan and Eberhardt. However, this difference in view is not involved in this case. It is completely immaterial here whether the words or the actions of the defendant's agent occurred within or without the premises of the defendant, for they are in combination insufficient as a matter of law to constitute an actionable tort whatever their situs.

From the factual summary it is to be seen that the agent merely asked the plaintiff 'Did you buy anything in this store * * * what about that bag in your hand?' The word 'buy' imports purchase and sale and there is nothing insulting or opprobrious about that. The action of opening the pocketbook and offering it for inspection was purely voluntary on plaintiff's part. By plaintiff's admission the agent did not say another word after that. Under this status of affairs, there was no violation of plaintiff's legal rights and thus no tort. See Code § 105-101 and Davis v. Johnson, 92 Ga.App. 858, 90 S.E.2d 426.

2. The plaintiff in her brief contends that her action is based on the common law tort of false imprisonment.

In Code § 105-901, false imprisonment is defined as the 'unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty.' The only essential elements necessary to create liability are the detention and its unlawfulness. Waters v. National Woolen Mills, 142 Ga. 133, 82 S.E. 535; Conoly v. Imperial Tobacco Co., 63...