American Stores Co. v. Byrd

• Decision Date: 22 May 1962
• Docket Number: No. 267,267
• Citation: 181 A.2d 333,229 Md. 5
• Parties: AMERICAN STORES COMPANY v. Helen Cox BYRD.
• Court: Maryland Court of Appeals

Page 5

229 Md. 5

181 A.2d 333

AMERICAN STORES COMPANY v. Helen Cox BYRD.

No. 267.

Court of Appeals of Maryland.

May 22, 1962.

William W. Travers and Walter C. Anderson, Salisbury (Webb & Travers, Salisbury, and Alexander G. Jones, Princess Anne, on the brief), for appellant.

John B. Robins, Salisbury (Robins & Robins, Salisbury, Thomas S. Simpkins and Simpkins & Simpkins, Princess Anne, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and MARBURY, JJ.

HORNEY, Judge.

This appeal is from a judgment for $25,000 entered by the Circuit Court for Somerset County in favor of Helen Cox Byrd (plaintiff or customer) against the American Stores Company (defendant) on the verdict of a jury in an action for slander.

On the afternoon of October 4, 1960, the customer entered the store of the defendant in Princess Anne accompanied by her twin daughters. Her son remained in the parked automobile. She purchased a gallon of milk and two cans of baked beans and paid for them. While she was waiting for her change and packaging of the purchases, the store manager (Ralph W. Pilchard) approached the check-out-counter, spoke to the customer (whom he had known, for a number of years) and gave the cashier (Edna E. Payne) some money which, absentmindedly, she put in the middle or stamp drawer of the cash register. After being checked out, the customer left the store and was proceeding toward the automobile when the store manager, having been informed by the cashier that the money he had given her could not be found, hurried out of the store and 'hollered' to the customer. In a loud and angry tone of voice, and in the presence of her children and the town police officer (John D. Ford and other persons on the street, the store manager demanded to know whether she had gotten or picked up the money that he had placed on the counter.

The original declaration alleged that the words, actions and conduct of the store manager, in asking the customer 'did you get the $117 that was on the counter' and that 'it was gone' and by demanding to examine the package containing the purchases and to look into her pocketbook and wallet, were slanderous per se and in fact charged that the customer had committed larceny. Subsequently, for the reason that the 'innuendo explaining the words spoken was omitted by inadvertence,' the plaintiff sought and was permitted to amend the declaration. In the amended declaration, the plaintiff alleged that the store manager 'did intend to and mean to charge' that the customer had committed larceny and that the words, actions and conduct of the manager were slanderous per se. The plaintiff further alleged that the charge was false and malicious; that it had been overheard by numerous people; that theretofore she had enjoyed a good reputation for honesty and integrity; and that as a result of the charge she had been brought into public infamy and disgrace and had suffered humiliation and anxiety, and was otherwise damaged. But she did not allege any special damages that she had suffered as a result of the incident. No demand was made for a bill of particulars. Nor was there a demurrer to either the original or amended declarations. The defendant in its 'answer,' however, besides setting forth the usual general issue pleas, alleged that the colloquium, together with the averred slanderous words, did not constitute slander or was not slanderous per se; and that the allegation in the amended declaration to the effect that the words spoken by the store manager did intend to and mean to charge the plaintiff with a felony, was an erroneous conclusion of law and was not supported by the facts.

According to the story the plaintiff-customer related at the trial, this is what was said and done:

(Manager): 'Just a minute? * * * Did you pick up that money that was on the counter?'

(Customer): 'No. Mrs. Payne put my change in my hand.'

(Manager): 'I'm not talking about that. * * * I'm taking about the money that I laid on the counter.'

(Customer): 'No, I did not.'

(Manager): 'Are you sure?'

(Customer): 'I'm sure I didn't pick up any money.'

(Manager): 'It's funny. * * * The money, you were there when I put the money down. * * * And when you walked out we can't find the money.'

(Customer): 'Well, * * * I'm sorry.'

(Manager): 'Well, we just can't find it.'

(Customer): 'Mrs. Payne put the money in the drawer.'

(Manager): 'She did not. We looked.'

(Customer): 'Well, I'm sorry. I don't know nothing else.'

(Manager): 'Where's your packages?'

(Customer): 'The package is on the front seat. The milk is in the back seat.'

The manager went to the left front window of the automobile and asked the son (Johnnie) for the package. Johnnie, who had just looked in the package did not give it to him, but he told him that there was nothing in the package but two cans of beans.

(Manager): 'Come on, come on. Give me the package.'

(Customer): 'Give him the package, Johnnie.'

Johnnie then gave the package to the store manager. He took it out the window, rested it on the ledge, looked in the package and then tore it open. When one of the cans of beans almost fell out, the manager, who seemed to the customer to be 'very angry and upset,' grabbed the can, straightened the package and threw it over on the back seat. He then turned around to face the customer again.

(Manager): 'Well, it certainly is funny. * * * Would you mind opening your pocketbook?'

(Customer): 'No, I wouldn't mind.'

The customer opened her pocketbook and the store manager looked into it, and when he wanted to see what was in the zippered compartment, she opened that too, but when he asked to look into her green wallet she refused.

(Customer): 'Mr. Pilchard, I didn't open my wallet in your store and I'm not opening my wallet now because what's in there belongs to me, not to you.'

(Manager: 'I can't understand it.'

(Customer): 'Mr. Pilchard, I told you Mrs. Payne put that money in the drawer.'

(Manager): 'Will you go back in the store with me?'

(Customer): 'Sure.'

The customer, who stated that she was upset, that her feelings were hurt, that she was ashamed, and that she was really 'mad,' appeared as if she might cry but she did not and managed to compose herself, while the manager, according to the customer, looked as if he could slap her face.

(Manager): 'Come on, let's go? Come on, let's go. * * * All right, let's go?'

On the inside of the store, the manager, who was still angry, and looked 'hateful' and 'mean,' according to the customer, did not ask the cashier to take another look until the customer reminded the manager that the money was in the middle drawer. When the cashier was told to look again 'to satisfy her' the money was found where the customer had said several times it had been placed. Whereupon the store manager apologized. And the customer left the store.

The testimony of the plaintiff as to what had occurred on the street was corroborated by the police officer, and although he admitted he did not hear the store manager accuse the customer of 'stealing,' he did hear him say that he 'had $117 on that counter and you're the only one that checked out at that time and the money is gone' and 'did you get it?'

There was no proof that the plaintiff had suffered any special damages, but near the end of the case, the court, over objection, allowed her to introduce into the evidence a financial statement of the net worth of the defendant.

On the other hand, the store manager, testifying on behalf of the defendant, stated that in a normal voice he asked the customer if it was possible that the cashier had 'given her the money' or put it in her package and that he had no reason to believe she had taken the money. The cashier also testified, but her testimony in the main concerned the misplacement of the money and the finding of it. And there were no other witnesses on either side.

At the close of the evidence offered by the plaintiff, the defendant moved for a directed verdict by way of separate motions. In one it was asserted that there was a material variance in the evidence between the alleged actionable words in the declaration and those shown by the evidence to have been used by the store manager. The second motion stated that the plaintiff failed to show that the store manager had charged her with or imputed to her any improper or illegal conduct, that the plaintiff had produced no evidence which entitled her to recover any damages, and that the evidence showed that the manager had never at any time used any words from which it could be inferred that he had charged the plaintiff with a crime. Both motions were denied, and, at the conclusion of the whole case, both were renewed and again denied.

In its instructions to the jury, the court, after explaining that the plaintiff had the burden of proving that she had been slandered, in effect informed the jury that if the plaintiff had not convinced it that the store manager had accused her of larceny, then the verdict should be for the defendant. But the jury was in effect further informed that if it found from the words, actions and conduct of the manager that he had charged her with larceny, then the verdict should be for the plaintiff, and that, in such event, it could award her such punitive damages as would be reasonable and proper under the circumstances. The defendant did not object to the instructions. The subsequent motion for a judgment n. o. v., or, in the alternative, for a new trial, was denied, and this appeal followed.

On appeal the defendant contends: (i) that the words, actions and conduct of the store manager were not slanderous per se; (ii) that the determination of whether the words, actions and conduct were slanderous per se was a matter of law for the court; (iii) that there was a material variance between the words alleged and the words proved; (iv) that the plaintiff failed to prove actual malice; and (v) that the admission in evidence of the financial...