Colonial Stores Inc v. Coker

• Citation: 48 S.E.2d 150
• Decision Date: 06 May 1948
• Docket Number: No. 31926.,31926.
• Parties: COLONIAL STORES, Inc. v. COKER.
• Court: United States Court of Appeals (Georgia)

48 S.E.2d 150

COLONIAL STORES, Inc.

v.COKER.

No. 31926.

Court of Appeals of Georgia,

Division No. 2.

May 6, 1948.

Rehearing Denied June 1, 1948.

Syllabus by the Court.

1. The general grounds are without merit for the reasons given in the body of the opinion.

2. Where, as here, the action was grounded not upon slander, but upon tortious misconduct of an employee of the defendant towards the plaintiff as an invitee, the court did not err in failing to charge the law with reference to slander.

3. There are no reversible errors in any of the other special grounds, for the reasons set forth in the body of the opinion.

Error from Superior Court, Fulton County; E. E. Andrews, Judge.

Action by Mrs. J. E. Coker against Colonial Stores, Inc., for damages for tortious misconduct of defendant's employees. To review a judgment for plaintiff, the defendant brings error.

Affirmed.

Mrs. J. E. Coker, plaintiff in the court below and defendant in error here, we shall call the plaintiff. Colonial Stores, Inc., defendant in the court below and plaintiff in error here, we shall call the defendant. This is the second appearance of this case in this court. Colonial Stores, Inc., v. Coker, 74 Ga. App. 264, 39 S.E.2d 429. The assignment of error there was on the overruling of the demurrer by the defendant to the plaintiff's petition. The judgment of the lower court was affirmed, that is to say, the petition set out a cause of action against the defendant. The allegations of the petition are substantially and accurately set out in that opinion of this court, and we will not here again repeat them. The defendant denied every substantial material allegation in the plaintiff's petition as to the allegations of the injury; and as to the alleged effect of the injury, for lack of information neither admitted nor denied same. By amendment the defendant further answered as follows:

"Further answering, defendant shows that any damage or injury suffered by plaintiff resulted solely from her own negligence and was in no way the result of any negligence on the part of defendant or its agents.

"Without admitting but expressly denying that any statements made by its employees to, or with reference to, plaintiff were of such nature as to constitute slander or oral defamation, defendant shows that said statements were made in good faith and on reasonable grounds in order to protect the interest of said employees and those of their employer in a manner where such interests were concerned, and were made in the performance of a private duty of such employee and hence that such statements were privileged communications under the provisions of Section 105-709, Code of Georgia."

The case proceeded to trial. Evidence was introduced by both parties. The court instructed the jury. The jury returned a verdict in favor of the plaintiff for $2500.00. The defendant filed a motion for a new trial on the general grounds, and added ten special grounds by amendment. We will give these special grounds substantially: (1) Because the court erred in failing to charge the jury the legal definition and the essential elements of the tort of slander; (2) Because the court erred in failing to charge the jury that it was its duty to determine whether the statements made by the defendant's employees conveyed and were intended to convey the meaning that the plaintiff was a cheat, swindler, and thief, and was endeavoring to cheat, swindle and defraud the defendant in violation of the statutes and laws of Georgia, and in failing to charge the jury in reference to the rulings of law pertaining to such determination; (3) Because thecourt erred in failing to charge the jury with reference to the rule of conditional privilege as contained in the Code, section 105-709 and in failing to charge expressly that if the statements made by the defendant's employees to or with reference to the plaintiff were made in good faith and on reasonable grounds in order to protect the interests of the defendant employees and those of their employer in a matter where such interests were concerned and were made in the performance of a duty of said employees, then said statements were privileged communications under the laws of Georgia and would not constitute slander in the absence of proof of malice; (4) Because the court erred in failing to charge the jury expressly that the plaintiff would not be entitled to recover in the event the jury found that any damage or injury by the plaintiff resulted solely from her own negligence and was in no way the result of any negligence on the part of the defendant or its agents; (5) Because the court erred in giving the following charge to the jury: "Plaintiff contends that the abusive treatment accorded her by said cashier and manager constitutes tortious misconduct on the part of defendant's employees, acting in and about the defendant's business and within the scope of their employment, and that the same caused her to suffer severe and excruciating mental pain, agony and anguish, ruined her reputation, held her up to scorn and ridicule, caused the public finger of reproach to be pointed toward her by her neighbors, all of which caused plaintiff to suffer distress and anguish of body and mind, disorganized her nervous system, rendered her unable to sleep at night, and seriously impaired her general health to such an extent that she is unable to digest her food and has no peace of mind."

(6) Because the court erred in giving the following charge to the jury: "The court further charges you that one who maintains a grocery store for the purpose of selling goods owes to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, a duty to exercise ordinary care to protect the customer against the use of any unpro voked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify and wound the feelings of the customer."

(7) Because the court erred in giving the following charge: "A further legal rule which I call your attention to, is that the plaintiff must have been in the exercise of ordinary care to protect herself against any wrongful conduct or breach of duty that may have occurred on the part of the defendant, its agents, servants, or employees. and ordinary care as applied to the plain tiff has the definition as already given you, and if the plaintiff could have by the exercise of ordinary care avoided the consequences to herself of the wrongful conduct or breach of duty of the defendant, or its agents, servants and employees, if there was such, she would not be entitled to re cover. The duty, however, to exercise ordinary care to avoid the consequences of another's wrongful conduct or breach of duty, docs not arise until the injured party knew, or, in the exercise of ordinary care, should have known of same, or the same is apparent, or by the exercise of ordinary care should have been apparent."

(8) Because the court erred in failing to charge the jury that the statements made by the defendant's agents would not constitute tortious misconduct on the part of such agents if the jury found such statements were made in good faith and on reasonable grounds and were therefore justifiable; (9) Because the court erred in giving the following instructions to the jury: "An item of damages that is recoverable on account of personal injury, where there is liability and where there is personal injury, is damage on account of pain and suffering, mental and physical, reasonably and proximately resulting from such injury. There is no mathematical rule by which such damages may be ascertained or determined. The only rule recognized by the law for determining such damage is the enlightened consciences of fair and impartial jurors." (10) Because the court erred in failing to charge the jury in reference to the rules of law pertaining to an action for damages resulting from mental and emo-tional disturbances where no physical injury actually accompanied such mental and emotional disturbances.

Smith, Kilpatrick, Cody, Rogers & Mc-Clatchey and Harry S. Baxter, all of Atlanta, for plaintiff in error.

Reuben A. Garland, of Atlanta, for defendant in error.

GARDNER, Judge.

1. So far as the general grounds are concerned, the evidence, though conflicting, was sufficient to sustain the verdict, and since this court has held, and we think correctly so, that the petition set out a cause of action, the jury were authorized to find, under the issues made by the petition and the defendant's answer that the allegations of the plaintiffs petition were supported by the plaintiff's evidence. Counsel for the defendant have much to say in their argument that the decision in this case when it was here before on the overruling of the demurrer, and the principles laid down in the decisions cited in this case when it was here before, are ambiguous and confusing and do not lay down a correct principle of law. We think they do, and we will not go further into them here. The general grounds are without merit.

2. Special grounds 1 and 2: As it will be observed, these grounds...