Hammond v. Eckerd's of Asheville
Decision Date | 07 January 1942 |
Docket Number | 108. |
Citation | 18 S.E.2d 151,220 N.C. 596 |
Parties | HAMMOND v. ECKERD'S OF ASHEVILLE, Inc. |
Court | North Carolina Supreme Court |
Civil action to recover for alleged assault, false arrest and slander.
In the pleadings it is admitted that defendant is a corporation existing under the laws of the State of North Carolina, with its principal office and place of business in the city of Asheville, in Buncombe County, in said State, where it conducts a general drug business on Patton Avenue; and that on July 5, 1940, Richard E. Young, Jr., who is "the son of Richard E. Young, who is the sole manager of defendant corporation in so far as the conduct and operation of its business in said city *** is concerned", "was in the employ of the defendant".
Plaintiff further in his complaint, makes substantially these allegations: (1) That Richard E. Young, Jr., is a duly qualified agent, servant and employee of defendant, and "at times *** hereinafter complained of was the clerk in charge of the cigar and tobacco counter in the defendant's drug store, and was at said times acting within the scope of his employment and in the furtherance of his master's business"; (2) that on 5 July, 1940, as he, the plaintiff, "was in the act of leaving the store of defendant" which he had entered for the purpose of purchasing certain medicine, as was his custom over a period of years, Richard E. Young, Jr., "agent, servant and employee of defendant" as "clerk in charge of the cigar and tobacco counter in the defendant's drug store", "called out to him in a loud and angry tone of voice, ordering this plaintiff to halt and return and put down the cigars which the said Richard E. Young, Jr. *** accused this plaintiff of having stolen from the cigar counter"; (3) that though plaintiff heard the words of said Richard E. Young, Jr., knowing that he was innocent of any guilt in connection with the larceny of defendant's property, continuing on his way, proceeded out of the store in the direction of the sidewalk on north side of Patton Avenue, but before reaching the sidewalk--"defendant through its said agent, servant and employee," rudely seized this plaintiff's arm and stopped him, within the well-lighted front areaway of defendant's storeroom, and thereupon directly accused the plaintiff of stealing two cigars from the defendant's cigar counter; (4) that plaintiff, still knowing and realizing his innocence "advised Richard E. Young, Jr., *** that he had not stolen any of the defendant's property and shook loose the restraining arm of the said Richard E. Young, Jr., and proceeded on and out of the store", and, when he was immediately in front of and across the street from Imperial Theatre, he heard some one, whom he believes to be Richard E Young, Jr., cry out to a policeman "Stop that man, he has stolen cigars from Eckerd's"; (5) that pursuant thereto, "a police officer of the city of Asheville stopped plaintiff, and in just a moment" said "Richard E. Young, Jr., came upon the scene" and "demanded that the officer search this plaintiff *** because plaintiff had stolen two cigars from the defendant"; (6) that after admonishing said Young, Jr., to be certain of his accusations, and after said Young, Jr., had re-asserted that he was certain and had again demanded the search, "the said police officer subjected this plaintiff to a humiliating, embarrassing and entirely unnecessary search, and as a result of said search found no cigars of any nature or character whatsoever on the person, or in the clothing of this plaintiff"; (7) and that as a result plaintiff has suffered injury and damage in manner and amount set forth.
Defendant, in answer filed, denies the material allegations of the complaint, and as further defenses, inter alia, avers an express denial (1) that Richard E. Young, Jr., or any other person, while in the employ of defendant, and while acting within the scope of his or her authority, made any statements malicious or with any feeling to or about the said plaintiff; or (2) that this defendant, or anyone acting in its behalf, arrested plaintiff or caused him to be arrested. Defendant further avers (a) that such detention of plaintiff, as there may have been, was caused by an officer attached to the police department of the city of Asheville, for whose acts defendant is no wise liable; and (b) that such acts and statements of the said R. E. Young, Jr., of, toward, about and concerning plaintiff were contrary to defendant's policy and positive instruction, to wit, never to accuse or cause the arrest of any person on a charge of theft in or about defendant's retail establishment, and that such acts and statements of said Young, as alleged in this complaint, were and are outside the scope of his authority.
In the trial court, plaintiff as a witness for himself, describes the occurrence in this manner:
Then, on cross-examination, plaintiff further testified:
The police officer, John E. Cutsill, also as witness for plaintiff, testified: ...
To continue reading
Request your trial