Revco Discount Drug Centers of Georgia, Inc. v. Famble, 69138

• Decision Date: 22 January 1985
• Docket Number: No. 69138,69138
• Citation: 326 S.E.2d 532,173 Ga.App. 330
• Parties: REVCO DISCOUNT DRUG CENTERS OF GEORGIA, INC. et al. v. FAMBLE.
• Court: Georgia Court of Appeals

Page 532

326 S.E.2d 532

173 Ga.App. 330

REVCO DISCOUNT DRUG CENTERS OF GEORGIA, INC. et al. v. FAMBLE.

No. 69138.

Court of Appeals of Georgia.

Jan. 22, 1985.

Robert W. Galloway, David G. Hammock, Savannah, for appellants.

Robert M. Ray, Jr., Savannah, for appellee.

CARLEY, Judge.

For the purpose of having a prescription filled, appellee entered a store owned and operated by appellant Revco Discount Drug Centers of Georgia, Inc. (Revco). While in the store, appellee was approached by appellant Lightle, an employee of appellant Revco. Lightle stated to appellee that he had previously caught appellee stealing batteries from the store, and had prohibited appellee at that time from returning to the store in the future. Subsequently, appellee initiated this civil action against appellants, alleging that the accusations made against him were "slanderous" and were "designed and calculated by [appellants] to cause him harm and injury." Following a jury trial, judgment was entered in favor of appellee. Appellants appeal.

1. "Since this case proceeded to verdict and judgment, the denial of [appellants'] motion for summary judgment is moot. [Cit.]" Fields Realty & Ins. Co. v. Lee, 149 Ga.App. 324(1), 254 S.E.2d 484 (1979). See also Ga. Farmers' Market Auth. v. Dabbs, 150 Ga.App. 15, 16(1), 256 S.E.2d 613 (1979); Gosnell v. Waldrip, 158 Ga.App. 685, 686(1), 282 S.E.2d 168 (1981).

2. Appellants moved for a directed verdict at the close of appellee's evidence, and renewed their motion at the close of all of the evidence. The stated basis for their motion was that there was no evidence that appellant Lightle's remarks had been overheard. Appellants enumerate as error the denial of their motion for directed verdict.

"Publication is indispensable to recover for slander. [Cit.]" Walter v. Davidson, 214 Ga. 187, 190, 104 S.E.2d 113 (1958). At trial, appellee testified that at the time the remarks were made by appellant Lightle, two other customers were within hearing distance, and actually overheard the remarks. Appellee further testified that the store cashier and pharmacist were nearby, and that the cashier acknowledged at the time of the incident that she had heard the conversation. Although the pharmacist testified that he had not overheard the conversation and the cashier testified that she did not recall having heard any such conversation, the evidence adduced at trial was sufficient to authorize a finding of publication. See Walter v. Davidson, supra at 189-191(1), 104 S.E.2d 113. Compare American Standard, Inc. v. Jessee, 150 Ga.App. 663, 668(4), 258 S.E.2d 240 (1979).

3. Appellants enumerate as error the denial of their motion for judgment n.o.v. They assert that their motion should have been granted on grounds which were not raised by their motion for directed verdict. "This court limits its review of the motion for judgment notwithstanding the verdict to those grounds raised by the motion for a directed verdict.... [Cit.]" Seaboard Coast Line R. Co. v. Mitcham, 127 Ga.App. 102, 105(2), 192 S.E.2d 549 (1972). See also Peacock v. Sheffield, 115 Ga.App. 116, 119(1), 153 S.E.2d 619 (1967); Adams v. Smith, 129 Ga.App. 850, 853(6), 201 S.E.2d 639 (1973); J.C. Penney Co. v. Davis & Davis, 158 Ga.App. 169(1), 279 S.E.2d 461 (1981). Therefore, this enumeration is without merit.

4. Appellants raise the general grounds. One theory of liability upon which appellee relied was that appellants' actions constituted tortious misconduct. "One who maintains a mercantile establishment for the purpose of selling goods owes a duty to a customer, lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked 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. [Cits.] A petition ... which alleges that the plaintiff, while present in the defendant's store as a customer, desiring to make a purchase from the defendant, was, in a loud and angry tone which could be heard by other customers present, falsely and unjustly accused by one of the defendant's clerks of having [stolen the store's property], which charge humiliated and embarrassed the plaintiff, set out a cause of...