Colonial Stores Inc v. Sasser, 32579.

• Decision Date: 11 July 1949
• Docket Number: No. 32579.,32579.
• Parties: COLONIAL STORES, Inc. v. SASSER.
• Court: Georgia Court of Appeals

79 Ga.App. 604

54 S.E.2d 719

COLONIAL STORES, Inc.

v.SASSER.

No. 32579.

Court of Appeals of Georgia, Division No. 2.

July 11, 1949.

Syllabus by the Court.

1. Where it is alleged that as plaintiff was leaving defendant's store and was on a public street, in the presence and hearing of numerous persons, an employee of the store demanded what she put in her pocket in the store and then searched her pockets with his hands, and where it is further alleged that, the facts being made known to the manager, the latter stated that the employee had been trained to do just that and he was doing the right thing, the petition set forth a cause of action and it was not error for the trial judge to overrule a general demurrer thereto.

2. There was no error in overruling the renewed special demurrers to the petition as amended.

Error from City Court of Richmond County; Gordon W. Chambers, Judge.

Suit by Annie Laura Sasser against Colonial Stores, Inc., for damages arising out of the alleged conduct of defendant's employee toward plaintiff as a customer of defendant's store. To review the judgment, defendant brings error.

Judgment affirmed.

The defendant in error, Mrs. Annie Laura Sasser, herein referred to as the plaintiff, filed a suit in the City Court of Richmond County against Colonial Stores, Inc., herein referred to as the defendant.

The petition as amended alleges that the defendant owns and operates a general retail, self-help food store in Augusta, Georgia; that the plaintiff entered the store as a customer to make purchases; that she picked up a box of onion salt and took it to the cashier's register to pay for it but, finding a long line of customers there, returned the box to the spice counter and left the store without making a purchase; that, as she was leaving the store and was on the street, an employee of the defendant company ran over to her, asked what she had put in her pocket, and patted both her pockets with his hands to make a search thereof; that this was in the presence and hearing of a number of persons on the street; that she returned to the store and demanded a public apology for this conduct from the manager; that the manager refused to apologize and further stated, as to the employee, "that he had been trained to do just that and that he was supposed to watch the customers and he was doing the right thing, however, apparently he had made a mistake", and that all this conduct on the part of the agent of the defendant was intended to imply that she was a thief.

The defendant demurred generally and specially to the petition. All grounds of demurrer were overruled, and to this decision of the trial judge the defendant excepts.

Fulcher & Fulcher Augusta for plaintiff in error.

W. D. Lanier, Augusta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

The petition in the instant case does not seek, as contended by counsel for the defendant, to set forth a cause of action based upon the utterance of false and defamatory words by the agent of a corporation. The only words alleged to have been spoken by the employee of the defendant after he had followed the plaintiff to the street in front of the store were in the form of a question as to what it was she put in her pocket in the store. "We. doubt that this question, by itself, would have been a sufficient allegation of tortious misconduct to sustain the action, and the plaintiff's further allegation that the defendant intended to convey and did convey the meaning that the plaintiff was a thief would, without more, have been in the nature of a conclusion.

However, it is further alleged that the defendant's employee laid hands on the plaintiff and felt her pockets, in the course of making a search. In this particular the case differs from Woolf v. Colonial Stores, 76 Ga.App. 565, 46 S.E.2d 620, wherein the incident not only occurred at some distance from the premises, but there was no allegation of any assault or battery, and the action was based entirely on the spoken words of the defendant's servant. The court there held that the petition showed on its face that it was an action for damages for slander, and cited various paragraphs of the petition to show that it was an action based entirely upon injury to the reputation.

Code, § 105-103 provides as follows: "Every person shall be liable for torts committed by his wife, his child, or his servant, by his command or in the prosecution and within the scope of his business, whether the same shall be by negligence or voluntary."

In McGhee v. Kingman & Everett, Inc., 49 Ga.App. 767(2), 176 S.E. 55, 59, it is held as follows: "In determining the liability of the master for the negligent or willful acts of a servant, the test of liability is, not whether the act was done during the existence of the employment but whether it was done within the scope of the actual transaction of the...