Swift v. S. S. Kresge Co., Inc.

• Decision Date: 14 September 1981
• Docket Number: No. 62392,62392
• Citation: 159 Ga.App. 571,284 S.E.2d 74
• Parties: SWIFT v. S. S. KRESGE COMPANY, INC.
• Court: Georgia Court of Appeals

Page 74

284 S.E.2d 74

159 Ga.App. 571

SWIFT v. S. S. KRESGE COMPANY, INC.

No. 62392.

Court of Appeals of Georgia.

Sept. 14, 1981.

Roy L. Allen, II, Willyerd R. Collier, Savannah, for appellant.

William T. Daniel, Jr., Darlene Y. Ross, Charles B. Mikell, Jr., Savannah, for appellee.

QUILLIAN, Chief Judge.

The plaintiff (appellant) brought a multicount complaint against the defendant corporation (appellee). The plaintiff sought to recover damages in tort arising out of an incident in which the plaintiff was charged with shoplifting and then subsequently acquitted. The plaintiff's motion for new trial was denied and an appeal to this court followed in which the plaintiff urges two enumerations of error. Held:

1. Plaintiff introduced an affidavit by a juror which attempted to show the existence of mental and physical conditions which impaired his deliberations. The trial judge properly declined to grant a new trial on this basis.

As was stated succinctly in Wellbeloved v. Wellbeloved, 209 Ga. 709(4), 75 S.E.2d 424, "It is settled beyond all possibility of dispute that a juror will not be heard to impeach his verdict. Code § 110-109; Williams v. State, 206 Ga. 757, 58 S.E.2d 810 ..." Accord, Bissell v. State, 153 Ga.App. 564, 567(3), 266 S.E.2d 238 wherein it was held: "Code Ann. § 110-109 provides: 'The affidavits of jurors may be taken to sustain but not to impeach their verdict.' As a matter of public policy, a juror cannot be heard to impeach his verdict, either by way of disclosing the incompetency or misconduct of his fellow-jurors, or by showing his own misconduct or disqualification from any cause."

2. The complaint alleges that at the time the plaintiff was apprehended by employees of the defendant she was called a thief and a shoplifter. It is urged that since the defendant corporation assumed the affirmative defense of justification under Code Ann. § 105-1005 (Ga.L. 1958, p. 693) and Code § 105-1801 these allegations were admitted and thus as a matter of law the plaintiff was entitled to recover for slander.

The plaintiff's argument is not sustainable. As a corporation the defendant "is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question." Behre v. National Cash Register Co., 100 Ga. 213(1), 27 S.E. 986. Accord, Garren v. Southland Corp., 237 Ga. 484, 228 S.E.2d 870; Ga. Power Co. v. Busbin, 242 Ga. 612(4), 250 S.E.2d 442. There being not an iota of evidence that the defendant corporation directed or authorized its employees or agents to impugn plaintiff's integrity or cast aspersions thereon, recovery for slander would not lie.

The basis, if any, for the plaintiff to recover would be under the exception to the Behre rule, the inelegantly and inexactly termed "action for tortious misconduct." See Zayre of Atlanta v. Sharpton, 110 Ga.App. 587, 589, 139 S.E.2d 339 which criticizes the language usage but wholeheartedly adopts the principle. Accord, Moone v. Smith, 6 Ga.App. 649(1), 65 S.E. 712; LeMaster v. Millers, 33 Ga.App. 451(1), 126 S.E. 875; Hazelrigs v. High Co., 49 Ga.App. 866, 176 S.E. 814; Sims v. Miller's Inc., 50 Ga.App. 640, 179 S.E. 423; Southern Grocery Stores v. Keys, 70 Ga.App. 473, 28 S.E.2d 581; Colonial Stores v. Coker, 74 Ga.App. 264, 39 S.E.2d 429. However, as these cases and others laboriously explain the plaintiff's cause rests not on slander but on the theory that a business inviter owes a public duty to protect its invitees from abusive language and conduct. As was pointed out in Southern Grocery Stores v. Keys, 70 Ga.App. 473, 477, 28 S.E.2d 581 supra, "The misconduct may involve elements of slander, but the gist of the right of recovery is not based on slander, but is based on the right of the invitee to be protected from any tortious misconduct on the part of the corporation from its agents and employees acting within the scope of their duties and about their master's business."

The plaintiff's argument that the defendant could not avail itself of the protection of the "Shoplifter's Act" (Code Ann. § 105-1005) under the circumstances here has already been determined...