Wal-Mart Stores, Inc. v. Smitherman

• Decision Date: 02 May 2003
• Citation: 872 So.2d 833
• Parties: WAL-MART STORES, INC., et al. v. Ross SMITHERMAN.
• Court: Alabama Supreme Court

872 So.2d 833

WAL-MART STORES, INC., et al. v. Ross SMITHERMAN.

1000684.

Supreme Court of Alabama.

May 2, 2003.

Rehearing Denied August 29, 2003.

Michael M. Shipper and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellants.

Tracy T. Sproule, Leah O. Taylor, and Rhonda Pitts Chambers of Taylor & Taylor, Birmingham, for appellee.

PER CURIAM.

The defendants Wal-Mart Stores, Inc. ("Wal-Mart"), and its employees Joe Paxton and Sheila Easterling appeal from a judgment entered on a jury verdict, awarding $100,000 to Ross Smitherman on his claims alleging negligence, wantonness, slander, and the tort of outrage. We reverse and remand.

I. Facts

This action arises out of a dispute between Smitherman, an employee of Merita Baking Company ("Merita"), and Wal-Mart over whether Smitherman should, at the instance of Wal-Mart, have credited Wal-Mart approximately $1.00 for an empty bread bag found during a routine bread delivery from Merita to the Wal-Mart Supercenter store in Prattville ("the Supercenter"). On the day the dispute arose, the assistant manager of the Supercenter admitted Smitherman through the back door into the vendor receiving area of the Supercenter. After Smitherman collected stale and damaged bread from the Supercenter shelves, he wrote Wal-Mart a credit slip for the stale and damaged bread. Smitherman then unloaded three rolling racks with trays of fresh bread from his delivery truck. As he rolled the racks filled with fresh bread through the back door of the Supercenter, the assistant manager checked in the delivery by scanning and counting the packages of bread. Smitherman then wrote an invoice for the charge to Wal-Mart and placed the bread on the shelves inside the store.

While Smitherman was placing the bread on the shelves, Easterling, a Wal-Mart employee, took the assistant manager's place as the receiving clerk. When Smitherman rolled his empty racks with empty trays to the back door in the receiving area, Easterling looked at the trays to make sure that Smitherman was not attempting to leave the store with any merchandise that had not been credited to Wal-Mart. She noticed an empty, flat bag in one of the trays. The empty bag would have held Sunmaid Raisin Bread, which, if charged to Wal-Mart, would cost a little more than a dollar.

Easterling assumed that Wal-Mart had, on a prior delivery, been charged for a loaf of bread that she assumed the bag had contained, and asked Smitherman to credit Wal-Mart for the price of the loaf of bread. Smitherman contended that the empty bread bag had never been filled with bread, but, rather, had been ejected by the packaging machine and then buried among successfully bagged loaves of bread. The accounts of Smitherman and Easterling of their conversation regarding the credit differ markedly. However, it is undisputed that Smitherman left the Supercenter without giving Wal-Mart a credit for the loaf of bread.

Later that same day, Smitherman's supervisor, James Maddox, telephoned Smitherman at home and told him that Joe Paxton, one of the managers of the Supercenter, had said that Wal-Mart did not want Smitherman to make any more deliveries to the store because of the incident. The next day, Maddox and Merita's district sales manager, Tommy McDaniel, visited Paxton at the Supercenter and told him Smitherman had refused to credit Wal-Mart because the empty bag had never been filled with bread. They also told Paxton that Smitherman would lose his job if he could not continue to deliver to Wal-Mart stores. Paxton told them that he would talk with the manager of the Supercenter, but that, in the meantime, Smitherman could not make deliveries to any Wal-Mart stores.

Maddox made Smitherman's scheduled stop at the Supercenter the next day. When he arrived, Paxton told him Smitherman was banned from delivering to the Supercenter. As a result of the dispute, Merita assigned Smitherman a route that did not necessitate contact with any Wal-Mart store. The new route was less lucrative and less convenient for Smitherman.

On March 17, 1999, Smitherman sued Wal-Mart, Easterling, and Paxton. As eventually amended, the complaint contained six counts. Count one alleged that the defendants had interfered with a business relationship between Smitherman and Merita. Count two alleged slander. Counts three and four alleged wrongful or intentional infliction of emotional distress (the tort of outrage). Count five alleged negligent or wanton training and supervision. Count six alleged, in toto:

"1. [Smitherman] realleges all allegations contained in this Complaint.

"2. [Smitherman] claims damages against Defendant Wal-Mart and Defendant Paxton for their negligence and/or wantonness in failing to investigate and/or follow the necessary policies and procedures to evaluate the incident at issue.

"3. [Smitherman] avers that Defendant Wal-Mart and Defendant Paxton were negligent and/or wanton in that they failed to adequately investigate and/or follow the necessary policies and procedures to evaluate the incident at issue.

"4. The negligence and/or wantonness of Defendant Wal-Mart and Defendant Paxton in failing to investigate and/or follow the necessary policies and procedures to evaluate the incident at issue was a proximate cause of [Smitherman's] damages.

"WHEREFORE, [Smitherman] demands judgment against Defendants Wal-Mart and Paxton for the damages, both compensatory and punitive, plus interest [and] all costs of this proceeding in an amount exceeding the jurisdictional minimum of this court."

Before trial, Smitherman dismissed his slander claim against defendant Easterling. Wal-Mart, Easterling, and Paxton, all represented by the same attorney, jointly moved for a summary judgment on all remaining claims. The trial court entered a summary judgment in favor of the defendants on Smitherman's tortious-interference claim. The case proceeded to trial on the theories of (1) negligent and/or wanton supervision and investigation, (2) slander as to Wal-Mart and Paxton, and (3) the tort of outrage.

At the close of the plaintiff's case-in-chief and again at the close of all the evidence, the defendants moved for a judgment as a matter of law ("JML") on all claims tried. The trial court denied the motions. The jury returned a general verdict in favor of Smitherman and against all the defendants for $100,000. The defendants filed a renewed motion for a JML or, in the alternative, for a new trial. The trial court denied the motion. The defendants appeal, arguing that they were entitled to a JML as to all the claims.

II. Applicable Standard of Review

"We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is `indistinguishable from the standard by which we review a summary judgment.'" Alabama Power Co. v. Aldridge, 854 So.2d 554, 560 (Ala.2002) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). "We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination." Id. (citing City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002)). "[S]ubstantial evidence is evidence of such weight and quality that fair minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

"The existence of a duty is a question of law to be determined by the ... court." Ex parte Farmers Exchange Bank, 783 So.2d 24, 27 (Ala.2000). See also State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1999).

III. The Claims

A. Negligent and/or Wanton Training and Supervision and Failure to Investigate

Wal-Mart, Easterling, and Paxton argue that Smitherman did not present substantial evidence to prove his negligence and wantonness claims. In that connection, they state:

"Smitherman has never been employed in any capacity by Wal-Mart. He has no contract with Wal-Mart. He was never promised that he could continue to deliver bread to Wal-Mart indefinitely. Wal-Mart became dissatisfied with Smitherman because Smitherman refused to provide a $1 credit to Wal-Mart's account for a bread bag he was removing from the premises. Wal-Mart asked Merita Bread to send a different delivery man to its store from that point forward."

Appellants' Brief, at 15. Thus, Wal-Mart, Easterling, and Paxton insist, they cannot be liable for the manner in which they investigated the merits of the dispute— whether Wal-Mart was entitled to a credit for the empty bread bag—because, they argue, they did not owe any duty to Smitherman, as an employee and sales representative of Merita, its bread vendor, to continue to allow Smitherman to deliver to Wal-Mart.

We agree with this argument, because it illustrates the fatal flaw in Smitherman's negligent and/or wanton failure-to-investigate claim. The flaw is that Smitherman has failed to cite, argue, or allege a principle of law that would prohibit Wal-Mart from refusing to deal with him for any reason—or for no reason. In the absence of such a principle, there could be no legal injury flowing from Wal-Mart's allegedly deficient investigation.

In essence, this claim is a wrongful discharge claim, masquerading as a negligent and/or wanton failure-to-investigate claim, where no wrongful-discharge claim has been, or could have been, maintained. In particular, count six of Smitherman's complaint alleges only that Wal-Mart and Paxton negligently or wantonly failed to investigate the credit dispute. Thus, Smitherman did not allege in his complaint—and does not argue on appeal— that his claim is one for wrongful termination of employment. Neither does he allege or argue that Wal-Mart owed him a right of permanent access to its premises for service of its Merita account, and the facts of this case would not support such a claim.

This is so, because...