Sawyer v. Gilmers, Inc.

• Decision Date: 24 January 1925
• Docket Number: 338.
• Citation: 126 S.E. 183,189 N.C. 7
• Parties: SAWYER v. GILMERS, INC., ET AL.
• Court: North Carolina Supreme Court

126 S.E. 183

189 N.C. 7

SAWYER v. GILMERS, INC., ET AL.

No. 338.

Supreme Court of North Carolina

January 24, 1925

Appeal from Superior Court, Durham County; Sinclair, Judge.

Action by Roma Sawyer against Gilmers, Inc., and another. Judgment for plaintiff, and defendants appeal. No error.

Whether secondary publication or repetitions of slanderous words was natural and probable consequence of original defamation which could have been anticipated held for jury.

Defendant Gilmers, Inc., is a corporation engaged in the business of operating a system of retail stores, one of which is located on Main street in the city of Durham, N.C. Defendant J. W Beavers, on May 13, 1922, was an employee of his codefendant his duties among others, being to investigate and report to the manager of the store the loss of property or the taking from the store of merchandise which had not been paid for. He had formerly been a police officer of the city of Durham.

Plaintiff then about 14 years of age, between 6 and 7 o'clock p. m. on Saturday, May 13, 1922, was in said store with her mother. While the mother was making purchases in said store, plaintiff was standing near the jewelry counter, manifesting an interest in the articles displayed thereon. This counter was near the door, opening from the store into the street. Defendant Beavers was standing a short distance from her, on duty in the store. Plaintiff's attention was directed particularly to the combs or barrettes displayed on the jewelry counter. The clerk in charge said to plaintiff: "Do you want to buy one of these (meaning the barrettes)?" Plaintiff replied, "No, I do not find the kind I want." Plaintiff had broken one of a pair that she owned and wanted a new one to match the unbroken one. At this moment her mother joined her and, together, they started for the door, intending to leave the store. Defendant Beavers rushed in between them and the door, and addressing plaintiff, in a loud and rough voice and with a brusque manner, said to her, "How about the one you have got in your hand?" Beavers threw his hand between plaintiff and the door, preventing plaintiff and her mother from going out of the store, as they intended to do. Beavers is a large, portly man, of unusual physical strength and of a commanding presence. Plaintiff was frightened by the words and conduct of Beavers, and began to cry. She made no reply to his question. Her mother at once took her by the hand, and showing Beavers that she had only a pocketbook in one hand and nothing in the other, said to him: "She has a pocketbook. She is my daughter. She does not steal." Plaintiff, then realizing what Beavers had said to her, said:

"You stuffy old fool! You had better look out who you are accusing of stealing in your old store."

Beavers made no reply to plaintiff or her mother, but withdrew his hand, and permitted them to leave the store. After returning home, upon the suggestion of the father of plaintiff, she and her mother returned to the store, and saw Mr. Tilley, the manager. The mother, in the presence of plaintiff, related to Mr. Tilley the occurrence. Mr. Tilley replied:

"Yes, I understand he did not accuse your daughter of stealing. Mr. Beavers says he stopped your daughter at the door and offered her a pocketbook."

Mr. Beavers was standing near by during this conversation.

Plaintiff was badly frightened and greatly humiliated by the words and conduct of Beavers. Many people were present in the store at the time. They both saw and heard the incident. It was discussed by her schoolmates when she returned to school the next week. Her friends and acquaintances spoke of it, in her presence. She told her parents that she wished to stop school. The incident was referred to in her presence by schoolmates and others from time to time during the remainder of that school term. The repeated references to the occurrence caused her continued humiliation.

Plaintiff, testifying as a witness in her own behalf, was asked the following question:

"What, if anything, do you remember now was said to you about this matter by any of your friends or acquaintances after it occurred?"

She replied:

"One boy said, 'Roma, if I had known you wanted a comb that bad, I would have bought you one.' A girl said to me, 'Roma, honey, did you really steal the comb.' Such remarks were made to me by different classmates in the high school."

To this question and answer, defendants, in apt time, objected; objection overruled; defendants excepted. This was defendants' first exception.

Plaintiff was asked the further question:

"State whether or not there was any difference in the actions of your friends before and after this occurrence."

She replied:

"Some of my friends acted cooler to me after this happened than they did before. I had been living in Durham about two years before this time."

To this question and answer defendants, in apt time, objected; objection overruled; defendants excepted. This was defendants' second exception.

Abner Pope, witness for plaintiff, testified that during May, 1922, he was running a grocery store in Durham; Mr. Sawyer and his family lived across the street, opposite his store. He was asked to state whether or not there was any discussion in his store, on Saturday night, May 13, 1922, in reference to Miss Roma Sawyer. He replied:

"Some time on Saturday night, about 7 o'clock, somebody came into the store. I do not recall who it was. He said something about Miss Roma being stopped down at Gilmers and accused of stealing something."

To this question and answer defendants, in apt time, objected; objection overruled; defendants excepted. This was defendants' third exception.

The witness continued:

"We were all so very much surprised that I did not know what to think of it. I had known her a long time, and had found her one of the most honest girls I had ever known. There were 15 or 20 people in my store. I do not know what they said, but everybody seemed to be surprised. I heard them say that it was Mr. Beavers who had accused her of stealing."

Defendants objected to this testimony and moved the court to strike it out; objection overruled; defendants excepted. This was defendants' fourth exception.

Defendants denied that Beavers had spoken the words to plaintiff, as alleged, and denied that he had prevented plaintiff and her mother from leaving the store, and offered evidence tending to contradict the evidence of plaintiff.

After the charge of the court, the jury returned verdict as follows:

(1) Did defendant Beavers speak to, of, and concerning the plaintiff, in the presence and hearing of another or others, the words, as alleged in the complaint? Ans. Yes.

(2) If so, did said language, in view of the attendant circumstances, amount to a charge of larceny, as alleged in the complaint? Ans. Yes.

(3) If defendant J. W. Beavers used such language, as alleged in the complaint, was he at the time acting within the scope of his employment, and in the line of his duty? Ans. Yes.

(4) Did defendants wrongfully assault the plaintiff, as alleged in the complaint? Ans. Yes.

(5) What damages, if any, is the plaintiff, Roma Sawyer, entitled to recover of defendants. Ans. $2,500.

Upon this verdict, judgment was rendered in favor of plaintiff and against defendants. Defendants appealed therefrom. Assignments of error are based upon exceptions taken in apt time to evidence and to instructions given the jury in the charge of the court.

Brogden, Reade & Bryant, of Durham, for appellants.

McLendon & Hedrick, of Durham, for appellee.

CONNOR J.

J. W. Beavers, while on duty in the store of his codefendant, his employer, Gilmers, Inc., observed plaintiff standing near the jewelry counter looking at some combs or barrettes displayed thereon for sale. He heard the clerk in charge ask plaintiff if she wished to buy one of the barrettes and heard plaintiff after examining them, reply that she did not, giving as her reason that she had not found the kind she wanted. Beavers, thereupon, at once, in a brusque manner approached plaintiff and in a loud and rough voice said to her, in the presence of her mother and a number of people then in the store "How about the one you have in your hand?" Plaintiff, a school girl about 14 years of age, was frightened by the manner and words of Beavers and began to cry. Her mother, by her reply to Beavers, indicated clearly to him that she understood that Beavers had charged plaintiff with larceny. Plaintiff was reassured by her mother's prompt defense. By her spirited remark to Beavers she made it equally clear that she also understood that he had accused her of stealing a comb. Beavers, without a word of apology or explanation, turned and walked away. They then left the store. When they returned later and complained to the manager, Mr. Tilley, of Beavers' manner and words, although he heard the conversation, Beavers was again silent. He had previously reported the incident to the manager, denying, however, that he had made an accusation of larceny against plaintiff.

These are the facts as found by the jury. There was sufficient evidence to sustain this finding. Under the instructions of the court, the jury found that Beavers, acting within the scope of his authority and in the line of his duty as an employee of his codefendant, used the language as alleged in the complaint and meant thereby to charge, and did charge, plaintiff with larceny, in the presence of her mother and many other persons then in the store. There was no justification or attempt to justify the charge. The defense was that Beavers did not use the language alleged and as testified by plaintiff and her mother.

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