Gillis v. Great Atlantic & Pacific Tea Co.
| Decision Date | 20 October 1943 |
| Docket Number | 91. |
| Citation | 27 S.E.2d 283,223 N.C. 470 |
| Parties | GILLIS v. GREAT ATLANTIC & PACIFIC TEA CO. et al. |
| Court | North Carolina Supreme Court |
This was an action to recover damages for slander. It was alleged that the defendant Little spoke of and concerning the plaintiff that she had stolen a bundle or package from defendant company's store, and further that the defamatory words were spoken while Little was acting within the scope of his employment by his co-defendant as manager of the store. The defendants denied that the slanderous words alleged were spoken by defendant Little, or that the corporate defendant was liable therefor.
Upon issues submitted there was verdict that defendant Little spoke of and concerning the plaintiff, in the presence and hearing of another or others besides her husband, in substance, the words alleged in the complaint and that defendant Little was at that time acting within the course and scope of his employment. Compensatory damages in the sum of $1,400 were awarded.
From judgment on the verdict, defendants appealed.
Don C. Young and James S. Howell, both of Asheville, for plaintiff.
Williams & Cocke, of Asheville, for defendants.
This was an action for damages for slander, and comes to us on defendants' appeal from a judgment on the verdict of the jury, in favor of the plaintiff. It was determined by the jury, in response to issues submitted, that the defendant Little falsely charged, in the presence and hearing of others, that the plaintiff had stolen a package from the defendant company's store, of which he was the manager in charge, and that at the time and with respect to the defamation complained of defendant Little was acting within the scope of his employment by his codefendant.
As the basis of their appeal defendants assign certain errors in the rulings of the trial judge in the admission and exclusion of evidence, and in his instructions to the jury.
It is contended that defendants' motion for judgment of nonsuit should have been allowed, but we think plaintiff's evidence considered in the light most favorable for her warranted submission of the case to the jury. The testimony of the plaintiff, her husband and another witness that defendant Little uttered the charge in substance as alleged in the complaint, in the presence and hearing of another or others besides her husband, was sufficient to make out a case of actionable wrong on the part of defendant Little, in the absence of allegations in the answer that the charge was true or its utterance privileged. The words spoken containing the imputation of the commission of the crime of larceny were actionable per se. Roth v. News Co., 217 N.C. 13, 6 S.E.2d 882; Bryant v. Reedy, 214 N.C. 748, 200 S.E 896; Flake v. News Co., 212 N.C. 780, 195 S.E. 55; Elmore v. Atlantic Coast Line R. Co., 189 N.C. 658 671, 127 S.E. 710; Cotton v. Fisheries Products Co., 177 N.C. 56, 97 S.E. 712; Jones v. Brinkley, 174 N.C. 23, 93 S.E. 372.
The defendant company's motion and its prayer for a directed verdict on the second issue were based on the further ground that there was no evidence to justify submission to the jury of the question of its liability for the defamatory words spoken by defendant Little.
The determinative question is whether the plaintiff's evidence affords any reasonable ground for the assumption that at the time and in respect to the utterance of the words complained of defendant Little was acting within the course and scope of his employment by his co-defendant. Giving the plaintiff the benefit of every fact and inference of fact pertaining to the issues involved, which may be reasonably deduced from the evidence (Cole v. Atlantic Coast Line R. Co., 211 N.C. 591, 191 S.E. 353), it appears that Little was manager of the defendant company's large grocery store in Asheville and had full charge of the premises and operations at that location; that he had under his supervision and control the parking space for customers of the store which the company provided on its premises just in front of the store and between it and the street; that on either side of the walkway from the street to the store, a distance of 30 to 40 feet, were places for automobiles, arranged for the convenience of customers and to invite and encourage their patronage. The defendant Little referred in his testimony to this space as "my grounds." On the occasion alleged, Friday, July 3, 1942, about noon, all this space was occupied by cars, many people were going in and out the store, and to and from the automobiles. At the time it was thought by one witness that as many as 200 people were on the premises, in and around the front of the store. Plaintiff's car was parked facing the walkway and about 10 or 15 feet from the front door. Little, the manager, was on duty, standing near the front door watching the checkers or cashiers (there were five stands for this purpose), and the customers coming and going. It was his duty as manager to supervise, control and further his employer's business and to safeguard its property. He saw the plaintiff, accompanied by her husband, pass out of the store with a wrapped package in her arms, going to their parked car. The package proved to be a dressed chicken which plaintiff had purchased. Apparently, not having seen plaintiff's husband pay the cashier for the article, and reaching the conclusion that it was being stolen, Little went to the plaintiff's car, and in loud and angry tones charged her with stealing the package. He required her to come back into the store for investigation, whereupon the cashier told the manager the article had been paid for. Later Little went out to plaintiff's automobile and in a low voice apologized to her. This evidence is susceptible of the reasonable inference that Little, while on duty, and acting in the line of his duty to his employer with respect to premises and property of which he had been given charge and supervision, in the effort to preserve his employer's goods and prevent their wrongful removal, and as incidental to the performance of this duty, made the charge against the plaintiff of which she now complains.
We think the evidence of sufficient probative force to warrant submission to the jury of the question of the corporate defendant's liability.
In Kelly v. Shoe Stores Co., 190 N.C. 406, 130 S.E. 32, 34, it was said: "The designation 'manager' implies general power, and permits a reasonable inference that he was invested with the general conduct and control of the defendants' business centered in and about their Wilmington store, and his acts are, when committed in the line of his duty and in the scope of his employment, those of the company." Though the employer may not be held liable if the employee of his own motion and incensed by an imagined wrong against his employer oversteps the bounds of lawful behaviour, yet liability does flow from the wrongful acts of the employee committed in attempting to do what he was employed to do when his acts are done in the line of duty and within the scope of his employment. Kelly v. Shoe Stores Co., supra. A distinction is to be observed between a wrongful act done to another by an employee in consequence of and to avenge an injury to his employer's goods already committed, and one done to prevent such injury from being committed or consummated, in the furtherance of his employer's interests. Daniel v. Atlantic Coast Line R. Co., 136 N.C. 517, 48 S.E. 816, 67 L.R.A. 455, 1 Ann.Cas. 718; Gallop v. Clark, 188 N.C.
186, 124 S.E. 145. In Parrish v. Mfg. Co., 211 N.C. 7, 188 S.E. 817, the line of distinction is laid down between those cases in which the liability of the employer attaches for torts of the employee committed while the latter is engaged in what he was employed to do and while he is at the time about his employer's business, and those cases where the injury to a third person occurs while the employee is engaged in some private matter of his own, outside the legitimate scope of his employment, and without specific authority from the employer. A similar distinction was pointed out in Martin v. Bus Line, 197 N.C. 720, 150 S.E. 501, and McLamb v. Beasley, 218 N.C. 308, 11 S.E.2d 283; D'Armour v. Hardware Co., 217 N.C. 568, 9 S.E.2d 12.
If the tort of the employee is committed in the course of doing the employer's work, and for the purpose of accomplishing it, it is the act of the employer, and he is responsible whether the wrong done be occasioned by negligence or reckless purpose to accomplish the employer's business in an unlawful manner. As was succinctly said by Stacy, C.J., in Dickerson v. Refining Co., 201 N.C. 90, 159 S.E. 446, 452, "When the servant is engaged in the work of the master, doing that which he is employed or directed to do, and an actionable wrong is done to another, either negligently or maliciously, the master is liable, not only for what the servant does, but also for the ways and means employed by him in performing the act in question."
The principle that the employer is to be held liable for the torts of his employee when done by his authority, express or implied, or when they are within the course and scope of the employee's authority, is equally applicable to actions for slander. Cotton v. Fisheries Products Co., 177 N.C. 56, 97 S.E. 712; Sawyer v. Gilmers, Inc., 189 N.C. 7, 126 S.E. 183, 41 A.L.R. 1184; 35 Am.Jur. 1001.
This principle was recently considered by this Court in case of Hammond v. Eckerd's of Asheville, 220 N.C. 596 18 S.E.2d 151, 155. While in that case judgment of nonsuit as to the corporate defendant was affirmed, the facts in some material respects were different from those in our case. There the clerk at the cigar...
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