Brown v. Colonial Stores, Inc.

• Decision Date: 10 July 1964
• Docket Number: 2,Nos. 1,3,No. 40529,40529,s. 1
• Citation: 110 Ga.App. 154,138 S.E.2d 62
• Parties: Mamie BROWN v. COLONIAL STORES, INC
• Court: Georgia Court of Appeals

Page 62

138 S.E.2d 62

110 Ga.App. 154

Mamie BROWN v. COLONIAL STORES, INC.

No. 40529.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 10, 1964.

Rehearing Denied July 30, 1964.

Syllabus by the Court

Under the facts alleged the petition failed to state a cause of action against the defendant corporation for slander, false arrest, or a violation of its duty to protect the plaintiff from tortious misconduct of its employees on its premises.

Mrs. Mamie Brown sued Colonial Stores Inc., to recover damages for an alleged tort. Her petition alleged as follows: 'Said defendant is engaged in the business of merchandising and selling food as a retailer of groceries and other merchandise to the general public and has many branch stores and super markets in said State and county and elsewhere. 2. Said defendant has hurt, injured, and damaged your petitioner in the sum of twenty thousand dollars (20,000 as the proximately result of its acts and the acts of its agents, employee's, officers, and servants hereinafter related. That on October 13, 1962, petitioner was in the supermarket of defendant, located at 1660 Jonesboro Road, S. E., City of Atlanta, Ga. (A) October 13, 1962 at said time and place, she went to and was there as a customer and invitee, to purchase and did purchase groceries as she had previously done at said time and place. (B) After purchasing her groceries and other articles then, and there, she went to the cashiers stand to have her grocery's check and to pay for them at the place and in the manner provided for such purposes at the checkers stand in said place of business. 3. While the petitioner was in the act, then and there, of having her purchaser's checked, and agent, employee, and manager, officer, servant of defendant, a Mr. Barnes, manager and in charge of said store approach stopped and spoke to petitioner as hereinafter related. (A) At all said times, then and there, said agent, employee, manager, officer, and servant of defendant spoke to and conversed with petitioner in the presence's where he could be and was heard and understood by other person's who were there and nearby, at the cashier stand and in said place of defendant's business. (B) At all times hereinafter related, said Mr. Barnes was an agent, employee, officer, and servant in charge of defendant's said store and was acting in his capacity, authority, employment of defendant's in and about the conduct of its said place of business. (C) At said time and place said agent, employee manager, officer, servant of defendant made himself known to petitioner and said to her. 4. 'Are you Mrs. Mamie Brown', She replied; 'yes', Then he said; 'I have a check here on the Southside Bank for forty dollars ($40.00)'. 'Did you write this check?', and then handed her the check. She looked at the check and siad; 'I did not cashed that check.' He then asked; 'Do you have any money in the bank. She said; 'No', I only write personal checks.' He then said; 'You were in the store when I cashed that check.' Then she said; 'I told him that I was in the store October 5, 1962 and I was not in the store with my son October 6, 1962.' Then Mr. Barnes said; 'I am going to take this check to the bank and have the signature on this check compared, with your signature at the bank.' 5. The petitioner did not write the check for $40.00 above referred to and had no prior knowledge thereof. (A) She was not in defendant's store with son or anyone when said check was presented and cashed October 6, 1962. She did not aid or have any part therein, received no benefit therefrom and the same was not her act or deed. (B) She does not have and cannot plead a copy of said check. 6. The act of said Mr. Barnes, his conversation and his statement did then and there embarrased humilated, ridiculed and held petitioner up to public scorn, odium, and implied that she had uttered, passed and cashed the check referred to and shown to her, that it was worthless and that she had committed a crime by aiding, abetting and knowing that said check had been presented uttered and cash as worthless. 7. Said act of said Mr. Barnes was the act of defendant in the usual course of his employment by defendant. 8. Said act and conversation of defendant's Mr. Barnes, agent Manager, officer, and servant, proximately cause said hurt, injury and damage to petitioner. 9. Said act, at said time and place was a breach of her freedom, Liberty, movement, privacy and was an unlawful arrest. 10. Said act and conversation at said time and place cause petitioner great embarrassment, made her sick and sore and thereby she suffered mental pain and agony therefrom.' The court sustained the general demurrer to the petition and the plaintiff excepted.

Charles W. Anderson, Melvin Pazol, Atlanta, Oze R. Horton, Hapeville, Ga., for plaintiff in error.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Barry Phillips, Jefferson Davis, Jr., Atlanta, for defendant in error.

RUSSELL, Judge.

With some difficulty the allegations of the pleadings may be construed to infer that the plaintiff was a customer in the defendant's store; that on October 6 a check with the plaintiff's name signed to it which according to the contention of the manager of the store was presented and cashed by plaintiff's son at a time when plaintiff was present in the store was returned for insufficient funds, and that the next time the plaintiff came into the store the manager asked her whether she wrote the check. She did not at first deny writing the check, but only said she did not cash it. He then asked her whether she had money in the bank and she agreed that she did not have money in the bank, or at least not in an account which would have covered the check in question: 'No, I only write personal checks.' The manager then said plaintiff was in the store when he cashed the check, and the plaintiff again evaded a direct denial, according to her quoted words, and said merely that she was not 'in the store with my son October 6,' the date of the check. Thus, the plaintiff's own account of the conversation puts her in an ambiguous position of appearing to evade forthright answers to questions naturally raised by the fact that the check had not been honored in the ordinary course of business by the drawee. It is hard to determine whether the plaintiff entended for the manager to understand that the check was a forgery, or that she had written the check but had not cashed it. She had not made her position clear. The manager then told her he intended to have the signature on the check compared with the signature of the maker on file at the bank. Only this last sentence can be made the subject of inquiry, because the plaintiff freely admitted she had no funds in the bank out of which the check could be paid. Since she had refused to state whether she did in fact write the check in answer to his question, the store manager's statement that he would find out by having a comparison of signatures made seems a natural reaction under the circumstances.

This conversation is alleged to give rise to a right of action because it was a 'breach of [plaintiff's] freedom, liberty, movement, privacy, and was an unlawful arrest.' The petition does not allege a cause of action for unlawful arrest because no unlawful detention is alleged. Westberry v. Clanton, 136 Ga. 795, 72 S.E. 238. It does not allege either that the words spoken were per se defamatory, or that they were subject to two meanings, one of which was intended by way of innuendo to be defamatory, nor does it allege that the defendant corporation directed or authorized its agent to speak the words in question. The petition hence does not set forth a cause of action for a breach of duty to refrain from slandering the plaintiff or for slandering her

Neither is an actionable violation of the right of privacy alleged. 'Personal liberty includes not only freedom from physical restraint, but also the right 'to be let alone', to determine one's mode of life, whether it shall be a life of publicity or of privacy, and to order one's life and manage one's affairs in a manner that may be most agreeable to him so long as he does not violate the rights of others or of the public.' Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101; Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682(2), 100 S.E.2d 881. It was said in Zerbst that one who seeks employment, and who obtains credit, and who trades with the proprietor of an automobile repair shop, naturally exposes herself to the ordinary hazards of life, including the fact that even though she rightfully refuses to pay a bill the creditor may complain to her employer, and that this is no invasion of privacy. Likewise, one who trades in a retail store, and whose name is signed to a check returned for insufficient funds, is exposed to questioning about the check as one of the normal hazards of modern mercantile trading, whether or not she wrote the check in the first instance, and particularly if the check was cashed by a member of her family. No 'right of privacy' has been invaded.

The duty of a proprietor to exercise ordinary care to prevent injury to an invitee on his premises arises when 'there is any reasonable apprehension of danger to such customer.' Moone v. Smith, 6 Ga.App. 649, 65 S.E. 712, a case cited by the plaintiff in error but involving a physical injury to a customer in the midst of a general fight in the establishment, and not otherwise applicable. The duty of the proprietor, may rest on either of two principles. It may itself be negligent by ordering its employee to do something which injuries the plaintiff or by negligently hiring an employee after such characteristics become known to it. No such facts are alleged here; the defendant is liable, if at all, under the doctrine of respondeat superior. 'Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in ...