Lamm v. Charles Stores Co., Inc.
| Decision Date | 15 June 1931 |
| Docket Number | 168. |
| Citation | 159 S.E. 444 |
| Parties | 201 N.C. 134, 77 A.L.R. 923 v. CHARLES STORES CO., Inc. LAMM |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Small, Judge.
Action by Rosamond Lamm, by her next friend, S. K. Lamm, against the Charles Stores Company, Inc. From a judgment of nonsuit plaintiff appeals.
Affirmed.
On motion for nonsuit, evidence in support of plaintiff's cause of action must be taken as true.
Plaintiff the daughter of S. K. Lamm, lived at Lucama, N. C., and at the time of the injury complained of was a student at Eastern Carolina Teachers' College at Greenville, N.C. While a student at Greenville, and away from home, the plaintiff had authority from her father, S. K. Lamm, to sign checks in his name.
The defendant alleged and offered evidence tending to show that on July 28, 1927, the plaintiff drew a check on the Lucama Bank in words and figures as follows: On the back of the check are the initials J. B. L. This check was paid by the bank upon which it was drawn and charged to the account of S. K. Lamm.
The plaintiff alleged and offered evidence tending to show that when she discovered said check in her father's bank statement, she notified him that she had not drawn the check and had had no transaction with the defendant, Charles Stores. Thereupon the plaintiff informed the Bank of Lucama that the check was a forgery, and said bank returned the check to the Bank of Greenville and from thence to the defendant. Thereafter, on September 12, 1927, S. K. Lamm duly received through the mail the following letter: The amount of the check was not paid, and on November 14, 1927, J. B. Long went before a justice of the peace and made an affidavit to the effect "that on or about July 28, 1927, Rosamond Lamm did unlawfully and feloniously obtain money by means of a worthless check, said Rosamond Lamm giving check to Charles Stores in payment of merchandise and cash, and signing check S. K. Lamm, per Rosamond Lamm, check given with intent to cheat and defraud contrary to the form of the statute and against the peace and dignity of the state," etc. Thereupon the magistrate issued a warrant for the plaintiff, requiring her to appear before the county court of Pitt county on November 29, 1927. Pursuant to the warrant, the plaintiff was arrested and afterwards appeared at the trial pleading not guilty and was adjudged not guilty. Subsequently, on February 8, 1929, the plaintiff instituted this action for damages against Charles Stores Company, Inc., basing the action upon false imprisonment, malicious abuse of process, and upon libel by reason of the letter of September 12, 1927. The plaintiff testified that she never signed the check for $10, and that she had never been upon the premises of Charles Stores Company, Inc. There was other evidence in behalf of plaintiff that the signature upon the check was not in her handwriting. There was further evidence in behalf of plaintiff that J. B. Long was the manager of Charles Stores in Greenville, and that he had instructed the clerks in the store
The evidence for the defendant tended to show that plaintiff came in the store and made a purchase of merchandise, and in paying for the purchase wrote the check in controversy and delivered it to the clerk who waited upon her; that said clerk took the check to Long, manager, who approved and O. K'd it, and the balance was paid to the plaintiff in cash. It also appeared without contradiction that the defendant operates a cash store, and that the manager, J. B. Long, had authority to hire and discharge clerks; that he received goods when they came in the store and paid the freight or express thereon; and that it was his duty to put the price on the goods and mark them, and to supervise the various clerks in the store. It was also in evidence without contradiction that the defendant Charles Stores on August 24, 1925, had given written instructions to all managers. The only instruction pertinent to this appeal is No. 2, in the following words: "If a manager cashes a personal check, it is on his own responsibility and he will positively be held responsible." It was also in evidence that Long, the general manager, cashed one hundred and fifty or two hundred checks every day, and that these checks were deposited to the credit of Charles Stores. There was further uncontradicted testimony that Long, the general manager, paid the check in controversy out of his personal funds to the Charles Stores, Inc. All of the evidence disclosed that the plaintiff was a young woman of good character and of fine lineage.
At the conclusion of all the evidence, there was judgment of nonsuit, and the plaintiff appealed.
Moore, Strickland & Dickens and W. A. Finch, all of Wilson, and Albion Dunn, of Greenville, for appellant.
Harding & Lee, of Greenville, and Larry I. Moore, of Newbern, for appellee.
Is a mercantile corporation liable in damages for the act of the general manager in issuing a warrant upon a forged check, supposed by him to have been given by a customer of the corporation?
There is ample evidence for a jury to find that the check in controversy was a forgery, and that the plaintiff had never been a customer of the defendant. A correct application of the principles of law governing the transaction rests entirely upon whether Long, the general manager of defendant corporation, was acting wholly beyond the scope of his employment in writing the letter complained of and in procuring the warrant for the arrest of the plaintiff. Much has been written upon scope of employment, and the general outlines of the doctrine have been clearly marked. The term is elastic, and correct interpretation and application thereof must always depend upon the variability of given facts. This legal variability has produced in this jurisdiction two well-marked lines of decisions. The liability line is represented by the following decisions Lovick v. R. R., 129 N.C. 427, 40 S.E. 191; Jackson v. Telegraph Co., 129 N.C. 347, 51 S.E. 1015, 70 L. R. A. 738; Bucken v. R. R., 157 N.C. 443, 73 S.E. 137; Fleming...
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