Burrow v. K-Mart Corp.

• Decision Date: 15 April 1983
• Docket Number: K-MART,Nos. 65390,65391,s. 65390
• Citation: 166 Ga.App. 284,304 S.E.2d 460
• Parties: BURROW, et al. v.CORPORATIONCORPORATION v. BURROW.
• Court: Georgia Court of Appeals

Page 460

304 S.E.2d 460

166 Ga.App. 284

BURROW, et al. v. K-MART CORPORATION

K-MART CORPORATION v. BURROW.

Nos. 65390, 65391.

Court of Appeals of Georgia.

April 15, 1983.

Irwin M. Levine, Atlanta, for appellants.

George W. Hart, Lawrie E. Demorest, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

The instant appeals arose from the following set of facts. Plaintiff, Idell Burrow, accompanied by her two daughters, visited the K-Mart store on Bankhead Highway to purchase two lamps. The lamps she selected were the last two of that type and she was unable to get them in the original cartons. The salesman procured two cardboard boxes in which he placed the lamps, leaving the boxes partially opened and partially closed--according to plaintiff, two flaps were up and two were down. The salesman carried the boxes to the cashier and gave the cashier the necessary price quotation for the lamps. The cashier rang up the purchase on the cash register and gave plaintiff a receipt. Plaintiff placed the receipt in her purse and waited for her daughters to pay for their purchases before leaving the store. When she picked up her boxes to leave she was approached by Ms. Rozie Lewis, the "store greeter."

Ms. Lewis testified that she approached the plaintiff because the two boxes were open, and she asked: "May I check your box, please?" She said that plaintiff told her she had just bought them and Ms. Lewis could go down to the cash register or ask the salesman who sold it to her. Plaintiff pointed out the salesman. Ms. Lewis said: "Ma'am, I can't go down there." Ms. Lewis opened the boxes, saw the lamps and asked plaintiff for her receipt. Plaintiff produced the receipt and was then permitted to take her purchases and leave.

Plaintiff gave a different version of the encounter. She testified that as she picked up her boxes, Ms. Lewis approached and said: "I got to search your boxes." She said: "I have my receipt." Ms. Lewis stated: "I still got to search your boxes" and "snatched" the boxes from her hands. Plaintiff asked Ms. Lewis to check with the cashier or the salesman who sold them to her--and she pointed him out. "She was talking very loud and rude. I said, 'Why are you searching me?' 'Because it is my job.' " After the search was completed, Ms. Lewis "told me I could go ... I was crying. I couldn't keep from crying." She testified that she was "embarrassed ... just really hurt ... ashamed ... and when I looked around, people were looking. I was really embarrassed." Plaintiff complained to the manager and the manager told Ms. Lewis: "This lady don't like the way you searched her." Ms. Lewis said: "If I had it to do all over again I would do it ... If you come through here with a box, I will search you." Plaintiff stated: "... they both looked at each other and kind of smiled and I was more hurt then than I was at first." There was testimony that the plaintiff has been "anxious and depressed" since this incident.

The evidence addressed at the trial with regard to K-Mart policies as to packages or boxes may be summarized as follows. K-Mart has a large sign prominently displayed at the entrance that "WE RESERVE THE RIGHT TO INSPECT ALL PACKAGES." The K-Mart manager testified that the "store greeter's" duties were to check all packages coming into the store to make sure they were sealed and if not sealed, she would seal them with a tape in "the color of the day"--or the customer could leave the package with the "store greeter" and pick it up on the way out. The inspection of the packages of persons coming into the store was voluntary and if they did not desire to have their package inspected they could depart from the store. The "store greeter's" duty as to persons leaving the store was to insure that sales receipts were visible. If "their sales receipts are not readily visible ... she will ask that the customer show their sales receipt on the way out." The manager stated that "all boxes are checked. Open boxes are checked entering or leaving the store ... [because] there could be some things concealed in those boxes." Ms. Lewis said that she checked open boxes to insure that the articles therein were the same as those on the receipt.

Plaintiff and her husband brought this action in which it was alleged that the defendant K-Mart "falsely imprisoned the plaintiff Idell Burrow, slandered her, and accused her of wrong doing." The plaintiff's husband joined in the suit seeking damages for loss of consortium. However, the trial court directed a verdict for the defendant on the husband's claim and submitted to the jury the problem of whether or not the plaintiff could recover based on two theories: 1) slander; 2) false imprisonment. The jury found for plaintiff in the amount of $25,000 for slander and $25,000 for false imprisonment. Thereafter, the trial court granted a judgment n.o.v. against plaintiff as to the slander issue. In Case No. 65390 plaintiffs appeal from those judgments dealing with slander and loss of consortium. In Case No. 65391 the defendant--K-Mart, appeals from the trial court's denial of a new trial on the verdict and judgment for damages for false imprisonment. Held:

1. Plaintiff contends the trial court erred in granting a judgment n.o.v. as to her recovery of $25,000 for slander. Under Code Ann. § 105-702 (OCGA § 51-5-4), slander may be committed in either of four methods, only one of which is applicable: "1) imputing to another a crime punishable by law." Plaintiff argues that the words and actions of the "store greeter" were "tantamount to saying, 'I believe you stole something.' " "From all of that, you can well draw the innuendo that could constitute slander."

We agree with plaintiff that intent and meaning of alleged defamatory statements may be gathered not only from the words themselves but from the circumstances under which they are uttered as well. Camp v. Maddox, 93 Ga.App. 646(2), 92 S.E.2d 581; Annot. 29 A.L.R.3d 961, Accusation of Shoplifting--Slander. One of those circumstances was the large and prominently displayed sign at the entrance which advised all patrons that K-Mart reserved the right to inspect all packages. Ms. Lewis did that and nothing more--although, as viewed by plaintiff, she was neither discreet nor polite. Ms. Lewis' words and actions, even as interpreted by the plaintiff amounted to nothing more than: "I'm going to check your boxes, it's my job." No criminal offense was imputed to the plaintiff. Wittern v. High Co., 36 Ga.App. 117, 135 S.E. 765; Christian v. Ransom, 52 Ga.App. 218, 183 S.E. 89; Braden v. Baugham, 74 Ga.App. 802(2), 41 S.E.2d 581; F.W. Woolworth Co. v. Loggins, 115 Ga.App. 557(3), 155 S.E.2d 462; see also Brown v. Colonial Stores, 110 Ga.App. 154, 157, 138 S.E.2d 62; Abner v. W.T. Grant Co., 110 Ga.App. 592(1), 139 S.E.2d 408.

" 'The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but cannot enlarge the meaning of words plainly expressed therein.' " Reece v. Grissom, 154 Ga.App. 194, 195, 267 S.E.2d 839. Thus, where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. Southeastern Newspapers v. Walker, 76 Ga.App. 57, 60, 44 S.E.2d 697.

We also find that even if the words did impute a crime, the rule is well established in Georgia 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." Behre v. National Cash Reg. Co., 100 Ga. 213(1), 27 S.E. 986. Accord, Swift v. S.S. Kresge Co., 159 Ga.App. 571, 572, 284 S.E.2d 74 and cases cited therein. There is nothing to show such direction on the part of K-Mart as to come within the exception to the rule.

" '[W]hen, as here, a corporation engaged in the retail mercantile business impliedly extends an invitation to the public to trade there, the law requires of such corporation the same degree of diligence to protect its customers from the tortious misconduct of its employees as it requires of a natural person to protect an invitee from the misconduct of its agents and employees acting about their master's business within the scope of their employment. The misconduct may involve elements of slander, but the gist of the right of recovery is not based on slander, but is based on the right of the invitee to be protected from any tortious misconduct on the part of the corporation from its agents and employees acting within the scope of their duties and about their master's business.' " Colonial Stores v. Coker, 74 Ga.App. 264, 266, 39 S.E.2d 429. Although in cases of this sort the ingredients of the action for "tortious misconduct" are often present, in the case sub judice this issue was never presented to the jury. The plaintiff requested a charge to such effect but the charge was not given. Hence, no determination in this vein is required.

The trial court did not err in directing a verdict against plaintiff on her allegations of slander.

2. As we find no basis for recovery based on loss of consortium the trial judge did not err in directing a verdict for the defendant on that issue.

3. K-Mart Corporation has cross-appealed from the judgment of the trial court in denying its Motion for New Trial on the general grounds--contending the verdict was contrary to the law and evidence.

This raises the issue regarding the plaintiff's second theory of recovery--false imprisonment. Our Code defines false imprisonment as consisting of "the unlawful detention of the person of another, for any length of time,...