Tocker v. Great Atlantic & Pacific Tea Company

• Decision Date: 17 May 1963
• Docket Number: No. 3213.,3213.
• Citation: 190 A.2d 822
• Parties: Helen N. TOCKER, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, a corporation, Appellee.
• Court: D.C. Court of Appeals

190 A.2d 822

Helen N. TOCKER, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, a corporation, Appellee.

No. 3213.

District of Columbia Court of Appeals.

Argued April 22, 1963.

Decided May 17, 1963.

Maxwell A. Ostrow, Washington, D. C., with whom Herman Tocker, Washington, D. C., was on the brief, for appellant.

John L. Laskey, Washington, D. C., with whom Francis L. Young, Jr., Washington, D. C., was on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

A customer appeals from a directed verdict for appellee at the conclusion of her case in which she sought to recover damages, both compensatory and punitive, for alleged slander, false arrest and wrongful detention.

The errors charged were rulings by the trial judge (1) that the words spoken by the store employee were not slanderous per se, viz., that they did not charge her with ,a crime involving moral turpitude and did not accuse her of an act punishable by law, and (2) that stopping her on the public street did not constitute false imprisonment.¹

The record reveals that appellant entered the store as a customer and made some purchases for which she paid and left the premises. A few minutes later she returned to make an additional purchase of yeast. At this time, after looking over the cheese display, she picked up a small package of cheese, walked a few steps away, decided against buying it, and put it back in the case. She paid for the yeast at the checkout counter. As she walked to the exit door, the store manager preceded her. After taking a few steps on the public sidewalk, the manager turned around and this action caused her to stop. The following exchange of words occurred:

"What did you do with that package of cheese you had in your hand?

"I put it right back with the other cheese — are you accusing me of taking it?

"I have been stopping people because the other day a woman bought meat and put it in with the cereals. Did you put the cheese on the cereal counter?

"No, I told you, if you go back and look, you will find a package of about 9¾ ounces of cheese, right where I said I put it, with the other cheeses."

While appellant expresses doubt that these words were slanderous per se standing alone, she contends that, under the circumstances outlined, they were definitely ambiguous and capable of different meanings, one being that she had taken the cheese and was guilty of shoplifting, and that this ambiguity required that the case be submitted to the jury. In view of our disposition of this appeal we are not required to decide this question.

The absence of the essential element of publication is fatal to appellant's claim for recovery of damages for slander. Because the interest protected by the law of defamation is that of reputation in the opinion of others, to render slander actionable it is necessary that the defaming words be communicated to some person other than the one defamed.² Appellant makes no showing that the words spoken to her were overheard by any other person. The burden was upon appellant to prove by a fair preponderance of the evidence the actual publication of the slanderous words. This she failed to do. She was the sole witness to testify on this point. Her only statement on this critical issue was, "There were other people behind me." No testimony was offered that the words of the manager were spoken in a loud, clear tone susceptible of being overheard or that...